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University  of  California  •  Berkeley 

Regional  Oral  History  Office  University  of  California 

The  Bancroft  Library  Berkeley,  California 

East  Bay  Municipal  Utility  District  Series 

Robert  B.  Maddow 


UTILITY  DISTRICT,  1972-1993 

With  an  Introduction  by 
Gayle  B.  Montgomery 

Interviews  Conducted  by 

Germaine  LaBerge 

in  1997 

Since  1954  the  Regional  Oral  History  Office  has  been  interviewing  leading 
participants  in  or  well-placed  witnesses  to  major  events  in  the  development  of 
northern  California,  the  West,  and  the  nation.  Oral  history  is  a  method  of 
collecting  historical  information  through  tape-recorded  interviews  between  a 
narrator  with  firsthand  knowledge  of  historically  significant  events  and  a  well- 
informed  interviewer,  with  the  goal  of  preserving  substantive  additions  to  the 
historical  record.  The  tape  recording  is  transcribed,  lightly  edited  for 
continuity  and  clarity,  and  reviewed  by  the  interviewee.  The  corrected 
manuscript  is  indexed,  bound  with  photographs  and  illustrative  materials,  and 
placed  in  The  Bancroft  Library  at  the  University  of  California,  Berkeley,  and  in 
other  research  collections  for  scholarly  use.  Because  it  is  primary  material, 
oral  history  is  not  intended  to  present  the  final,  verified,  or  complete 
narrative  of  events.  It  is  a  spoken  account,  offered  by  the  interviewee  in 
response  to  questioning,  and  as  such  it  is  reflective,  partisan,  deeply  involved, 
and  irreplaceable. 


All  uses  of  this  manuscript  are  covered  by  a  legal  agreement 
between  The  Regents  of  the  University  of  California  and  Robert  B. 
Maddow  dated  February  3,  1997.  The  manuscript  is  thereby  made 
available  for  research  purposes.  All  literary  rights  in  the 
manuscript,  including  the  right  to  publish,  are  reserved  to  The 
Bancroft  Library  of  the  University  of  California,  Berkeley.  No  part 
of  the  manuscript  may  be  quoted  for  publication  without  the  written 
permission  of  the  Director  of  The  Bancroft  Library  of  the  University 
of  California,  Berkeley. 

Requests  for  permission  to  quote  for  publication  should  be 
addressed  to  the  Regional  Oral  History  Office,  486  Bancroft  Library, 
Mail  Code  6000,  University  of  California,  Berkeley  94720-6000,  and 
should  include  identification  of  the  specific  passages  to  be  quoted, 
anticipated  use  of  the  passages,  and  identification  of  the  user. 

It  is  recommended  that  this  oral  history  be  cited  as  follows : 

Robert  B.  Maddow,  "Water  Supply,  Water 
Rights  and  Other  Legal  Issues  at  the  East 
Bay  Municipal  Utility  District,  1972- 
1993,"  an  oral  history  conducted  in  1997 
by  Germaine  LaBerge,  Regional  Oral  History 
Office,  The  Bancroft  Library,  University 
of  California,  Berkeley,  2003. 

Copy  no. 

Robert  B.  Maddow,  2003 

Cataloging  information 

MADDOW,  Robert  B.  (b.  1943)  EBMUD  attorney 

Water  Supply,  Water  Rights  and  Other  Legal  Issues  at  the  East  Bay  Municipal  Utility 
District,  1972-1993, 2003,  vi,  304  pp. 

Childhood  in  Arizona  and  southern  CA;  Stanford  University,  B.A.,  1964;  Hastings 
College  of  the  Law,  J.D.,  1967;  U.S.  Air  Force,  1967-1972:  contracts,  military  justice, 
other  legal  work;  East  Bay  Municipal  Utility  District,  1972-1993:  water  rights,  utilities 
and  environmental  law;  preserving  Mokelumne  and  American  Rivers  water  rights, 
including  EDFv.  EBMUD,  1972-1993;  affirmative  action;  responses  to  drought; 
recreational  facilities  at  reservoirs;  Penn  Mine;  reflections  on  Vietnam  War,  relations 
with  state  and  federal  water  agencies,  EBMUD  management  and  board  of  directors. 

Introduction  by  Gayle  Montgomery,  former  political  editor,  Oakland  Tribune. 

Interviewed  1997  by  Germaine  LaBerge  for  the  East  Bay  Municipal  Utility  District  Oral 
History  Series.  The  Regional  Oral  History  Office,  The  Bancroft  Library,  University  of 
California,  Berkeley. 

Underwritten  by  the  East  Bay  Municipal  Utility  District. 

TABLE  OF  CONTENTS --Robert  B.  Maddow 

PREFACE  by  Frank  E.  Howard  i 

INTRODUCTION  by  Gayle  B.  Montgomery  ii 

INTERVIEW  HISTORY  by  Germaine  LaBerge  iv 


Parents  and  Sister  1 
Growing  Up  in  Tucson  3 
Childhood  Pastimes,  Interests,  Hobbies  7 
Junior  High  and  High  School  in  San  Diego  11 
Influences  15 
College  Choices  17 
Stanford  University,  1960-1964  19 
Hastings  College  of  the  Law,  1964-1967  24 
Jobs  During  Student  Years  26 
Social  Life  in  College  29 
Vietnam's  Impact:  Nationally,  Locally,  and  Personally  32 
U.S.  Air  Force,  1967-1972  36 

Colonel  Nunn's  Influence  38 

JAG  40 

Family:  Elaine,  David,  and  Rachel  42 

Religious  Background  48 

Decision  to  Leave  L.A.  and  the  Air  Force  50 

Interview  with  Jack  Reilley  53 
Describing  the  Office  56 
CEQA,  NEPA,  and  ACWA  58 
CEQA  Guidelines  and  Evolution  of  Environmental  Law,  1972  62 
Political  Reform  Act  of  1974  64 
The  Fortune  500  Test  66 
Establishing  a  Network  of  Water  Lawyers  68 
John  Plumb,  Jack  Knox,  Rod  Franz  73 
Board  of  Directors  75 

The  Brown  Act  Requirements  76 

Helen  Burke 's  and  Ken  Simmons'  Contributions  77 

Change  in  Board  Elections  81 

Role  of  the  General  Manager  83 

Bert  Carrington  and  Other  Directors  84 

Affirmative  Action  88 

Settling  a  Lawsuit  92 

Human  Resources  Department  96 

Minority  and  Women-Owned  Business  Enterprise  Office  98 

District's  Response  to  Drought  of  1976-1977  100 

Middle  River  Pumping  Plant  100 

Contra  Costa  County  Supply  102 

Marin  County  and  the  Great  Circle  Route  103 

Customer  Usage  during  the  Shortage  107 

Will  Rationing  Work?  108 

Developing  Usage  Allotment  110 

East  vs.  West  Argument  with  Examples  113 

Public  Hearing  on  Rates  and  Board  Support  117 

More  on  Agreements  to  Share  Water,  1976-1977  118 

Woodward  Island  Right  of  Way  120 

PG&E  License  on  the  Mokelumne  123 

Changes  in  Focus  from  Fifties  to  Eighties  126 

Declining  Block  Rates  and  Chevron  128 

Changing  Times  Bring  New  Needs  and  Different  Costs  129 

Marginal  Cost  Pricing  132 

Taxation  of  EBMUD  Real  Property  by  the  Mountain  Counties  134 

Experts  and  Compromise  137 

Effect  of  Proposition  13,  1978  140 

Bob  Maddow  as  Litigator  141 

Hiring  Outside  Counsel  143 


Historical  Background  147 

Agreement  with  U.S.  Bureau  of  Reclamation  and  Others,  1968  150 

State  Water  Resources  Control  Board  Decisions  1356  and  1400    150 

Litigation:  Environmental  Defense  Fund  (EOF)  I,  1972  153 

Plaintiffs  153 

Environmental  Impact  Reports  154 

Sacramento  County  Joins  Plaintiff  Group  155 

Judge  Brunn  Sustains  Demurrer,  1973  156 

U.S.  Supreme  Court  and  the  Delta  Decisions  160 

Litigation:  EOF  II  161 

Water  Action  Plan  under  General  Manager  Jerry  Gilbert  163 

Attempt  to  Settle  Fails,  1984  165 

Preparing  for  a  Trial  on  the  Facts  166 

Hiring  Arthur  Littleworth's  Firm,  1984  166 

Statute  of  Limitations  Issue:  Meeting  at  Norman's  169 

Trial  Before  Judge  Bancroft,  Alameda  County,  1984  171 

Referral  to  State  Water  Resources  Control  Board  173 

Hearings  Before  the  State  Board,  1984-1988  175 

The  State  Board's  Team  177 

Proposed  Physical  Solutions  179 

Sacramento  County's  Issues  180 

Senator  Greene's  Commitment  on  S.B.  2458,  1986  183 

Assemblyman  Isenberg  and  Water  Meters  185 

Art  Littleworth  and  the  Defense  Team  189 

Report  of  State  Water  Resources  Control  Board,  1987  191 

Another  Trial  in  Alameda  County  Superior  Court  192 

Daily  Summaries  and  Expert  Witnesses  195 

Judge  Hodge's  Decision  and  Continuing  Jurisdiction  197 

Assessment  of  the  Reference  Procedure  201 

Principle  of  Concurrent  Jurisdiction  203 

Public  Trust  Doctrine  207 

Water  Quality  Issue  209 

Attorney  General  and  the  State  Lands  Commission  213 

EBMUD  Board  Support  216 

Keeping  Options  Open  216 

Financial  Support  217 


Disinfection  Process,  1997  220 

Recreation  and  Watershed  Protection  222 

Lake  Chabot  223 

Other  Watersheds  and  Mountain  Biking  225 

Grazing  226 

Camanche  Reservoir  228 

Contract  with  Park  District  for  Peace  Officers  230 

Pump-back  Scheme  for  Camanche,  1988  231 

Scientific  Background  from  EBMUD  Experts  235 

Value  of  Historical  Records  in  Water  Rights  Issues  236 

The  Penn  Mine  238 

Historical  Background  238 

Court  Finds  No  Responsibility  on  Part  of  War  Department  239 

EBMUD  Acquires  Land  for  Camanche  Reservoir  241 

Attempts  to  Contain  Mine  Wastes  242 
Involvement  of  Regional  Water  Quality  Control  Board  and 

Department  of  Fish  and  Game  244 

Committee  to  Save  Mokelunme  River  v.  EBMUD,  1993  247 

Public  Policy  Issue  253 

EPA's  Involvement  255 

Wastewater  Treatment  257 

Wet  Weather  Program  258 

Peripheral  Canal  Issue,  1982  261 

Variety  in  the  Legal  Department  265 

Divorce  Case  265 
Criminal  Matter  Diverted  to  State  Water  Resources  Control 

Board  267 

Solution  269 

Vision  Comes  from  Board  of  Directors  or  General  Manager?  272 

Decision  to  Enter  Private  Practice  277 



INDEX  299 

PREFACE  by  Frank  E.  Howard 

For  more  than  seventy  years  the  General  Counsel  of  the  East  Bay 
Municipal  Utility  District  has  faced  issues  that  have  shaped  the  legal 
history  of  California.   The  role  of  EBMUD  attorneys  in  securing  and 
protecting  water  rights  has  added  important  chapters  in  the  annals  of 
Wetsern  water  law.   In  addition  to  the  accomplishments  in  water  resource 
development  and  protection,  the  water  district's  attorneys  have  been 
involved  in  landmark  decisions  in  many  areas  of  public  law,  including 
eminent  domain,  taxation,  land  use  planning,  public  contracts,  and 
municipal  financing.   With  the  creation  of  the  Special  District  and 
construction  of  wastewater  treatment  facilities,  EBMUD  lawyers  began  to 
face  new  legal  issues  in  areas  which  subsequently  became  the  environmental 
law  development  of  the  sixties. 

The  period  from  1953  to  1973  brought  major  annexations  to  the  EBMUD 
service  area.   This  triggered  needs  for  major  facility  expansions  and  a 
supplemental  water  supply.  The  "flip  side"  of  these  needs  were  new  legal 
challenges  as  well  as  increased  state  and  federal  regulatory  requirements. 
The  seventies  and  eighties  brought  new  legal  issues  in  public  employment, 
municipal  financing,  and  environmental  control  and  challenge. 

In  1995,  the  district  asked  The  Bancroft  Library  of  the  University  of 
California,  Berkeley,  to  conduct  an  oral  history  series  of  the  General 
Counsel's  Office.   The  Regional  Oral  History  Office  proposed  to  interview 
leading  lawyers  for  the  district  to  record  and  preserve  their  memories. 
The  primary  sources  available  for  the  project,  Harold  Raines,  John  B. 
Reilley,  and  Robert  Maddow,  enjoyed  careers  which  spanned  almost  the  entire 
seventy-year  history  of  EBMUD.  They  were  three  of  only  four  attorneys  who 
led  the  legal  department  since  its  formation  in  1923.   By  recording  the 
personal  recollections  and  anecdotal  observations  of  those  directly 
involved  in  the  major  legal  and  legislative  contests  of  the  district,  the 
written  records  will  be  amplified  and  strengthened  to  the  benefit  of  future 
managements,  historians,  and  the  public  in  general. 

Frank  E.  Howard 
Attorney  at  Law 

Walnut  Creek,  California 
April  11,  1997 


INTRODUCTION  by  Gayle  B.   Montgomery 

In  those  days,  the  district's  lawyers  were  almost  as  far-ranging  as  its 
engineers,  with  court  battles  here,  there,  everywhere,  and  seemingly  all  at 

John  Wesley  Noble 

Its  name  was  M.U.D. 

On  the  beginnings  of  the  East  Bay  Municipal  Utility  District 

When  Bob  Maddow  was  named  general  counsel  of  EBMUD  in  1984,  there 
truly  were  "court  battles  here,  there,  everywhere,  and  seemingly  all  at 
once."  It  seemed  that  the  District  was  under  attack  from  every  direction. 

I  had  met  Maddow  when  I  came  to  work  as  a  public  information  officer 
for  EBMUD  the  previous  year,  and  immediately  was  struck  by  his  knowledge  of 
water  law,  water  history,  water  tradition,  and  how  all  affected  the 


By  the  time  he  left  EBMUD  a  decade  later,  I  would  regard  him  as  the 
conscience  of  the  water  District. 

He  had  a  quiet  unassuming  manner  that  masked  his  inner  strength.   It 
was  Maddow  who  showed  me  the  ways  of  water  law,  and  how  the  laws  affect  the 
Mokelumne  River  that  is  the  lifeline  of  the  East  Bay  Municipal  Utility 
District,  and  how  the  river,  in  turn,  affects  the  law.  He  had  an  unerring 
sense  of  what  was  the  "right"  thing  to  do,  and  never  let  expediency 
interfere  with  the  course  he  chose. 

I  came  to  see  how  fortunate  the  people  of  the  East  Bay  were  to  have 
had  the  pioneer  water  planners  who  went  to  the  Sierra  to  find  the  high- 
quality  water  that  has  meant  so  much  to  the  people  of  Alameda  and  Contra 
Costa  Counties,  but  I  also  realized  that  those  early  water  providers  would 
have  been  totally  lost  in  the  complex  tangle  of  water  regulation  in  the 
1980s  and  1990s.   It  was  then  that  I  knew  that  while  the  vision  of  early 
leaders  pointed  EBMUD  in  the  right  direction,  it  would  be  the  Bob  Maddows 
who  would  make  it  work. 

There  was  little  room  for  error  in  those  years  that  I  worked  with 
General  Counsel  Maddow.   There  were  more  than  40  agencies  in  Sacramento 
County  alone  that  were  working  to  keep  EBMUD  from  obtaining  water  from  the 
American  River  through  a  contract  signed  with  the  Bureau  of  Reclamation  in 
1970.   He  was  a  tireless  leader  in  putting  together  the  legal  battle  plan 
in  hearings  before  the  State  Water  Resources  Control  Board  and  later  in 


Superior  Court.  His  legal  staff  could  match  any  public  agency  anywhere. 
His  workdays  often  lasted  late  into  the  evening  and  his  work  week  included 
weekends . 

Yet,  he  always  had  time  and  patience  to  explain  complicated  legal 
actions  to  a  public  information  officer  who  had  to  go  out  in  front  of 
television  cameras,  or  to  enjoy  a  good  political  story  with  this  former 

Bob  Maddow  is  a  water  expert  and  a  legal  scholar,  the  kind  of  a  man 
who  sometimes  is  defined  simply,  but  in  the  greatest  sense,  as  a  "pro."   He 
never  was  ambivalent  about  where  his  duties  lay,  nor  was  there  any  doubt 
that  he  would  complete  whatever  task  he  set  about  doing.   But  there  is  much 
more  to  him  than  that.   Despite  his  devotion  to  his  profession,  he  always 
found  time  for  his  family  and  his  community.   He  always  would  work  harder 
himself  to  make  life  easier  for  someone  else. 

His  strength  and  integrity  is  far  greater  than  one  has  come  to  expect 
in  public  service,  a  strength  he  assuredly  has  carried  into  private  law 

I  am  proud  to  call  Bob  Maddow  a  long-time  colleague  and  a  trusted 
friend . 

Gayle  B.  Montgomery, 
former  political  editor, 
The  Oakland  Tribune 

December  1998 


INTERVIEW  HISTORY  by  Germaine  LaBerge 

The  Regional  Oral  History  Office  (ROHO)  has  long  been  interested  in 
California  water  issues.  In  1991,  the  East  Bay  Municipal  Utility  District 
(EBMUD)  funded  a  full  life  oral  history  with  Walter  McLean,  a  civil 
engineer  of  the  district  who  specialized  in  water  resources  engineering.  We 
were  delighted  then  when  a  group  of  retired  EBMUD  attorneys,  engineers,  and 
managers,  approached  ROHO  to  suggest  documenting  the  history  of  water 
rights  litigation  and  legislation  from  the  standpoint  of  EBMUD.  The  idea 
was  to  begin  with  interviews  of  Harold  Raines,  John  B.  Reilley,  and  Robert 
Maddow,  all  former  general  counsel  of  the  district.  The  EBMUD  Board  of 
Directors  accepted  a  proposal  drafted  by  Frank  Howard  of  the  Friends  of 
Western  Water  Law,  and  with  the  board's  funding,  we  began  to  document  the 
work  of  EBMUD 's  general  counsel's  office.  Robert  Maddow  is  the  third  and 
final  interviewee  in  this  series. 

A  graduate  of  Stanford  University  (1964)  and  Hastings  College  of  the 
Law  (1967),  Robert  Maddow  came  to  EBMUD  in  1972,  fresh  from  five  years  in 
the  United  States  Air  Force.  In  the  oral  history  which  follows,  Maddow 
describes  how  then  General  Counsel  Jack  Reilley  interviewed  and  offered  him 
a  job  in  the  legal  department --an  amusing  anecdote  not  recorded  anywhere 
else  in  the  annals  of  EBMUD.  It  was  the  beginning  of  a  friendship  and  close 
collegial  relationship,  as  Jack  and  Bob  worked  tirelessly  in  the  interests 
of  providing  the  highest  quality  water  to  the  customers  of  the  district. 
When  Bob  Maddow  was  appointed  general  counsel  in  1984,  the  controversy  over 
the  rights  'to  the  American  River  water  was  heating  up.  His  oral  history 
documents  the  legal  and  environmental  issues  involved,  including  years-long 
litigation  (EOF  v.  EBMUD) .  Maddow  also  discusses  how  the  district  responded 
to  drought,  incorporated  affirmative  action  policies  in  hiring,  and  oversaw 
safe  recreational  uses  of  the  reservoirs.  Throughout  his  tenure,  Bob 
represented  the  East  Bay  Municipal  Utility  District  with  integrity, 
intelligence,  perseverance,  and  that  rarest  of  qualities --humour. 

Six  interviews  were  recorded  (twelve  hours)  from  February  to  June 
1997,  either  at  The  Bancroft  Library  or  at  the  Law  Offices  of  Bold, 
Polisner,  Maddow,  Nelson  &  Judson  in  Walnut  Creek.  The  tapes  were 
transcribed  and  lightly  edited  at  ROHO,  and  sent  to  the  interviewee  for  his 
approval.  Because  his  narrative  was  clear  and  eloquent,  little  editing  was 
necessary.  Careful  and  considerate,  Bob  spent  time  checking  facts  and 
expanding  on  his  thoughts  and  descriptions.  His  additions  and  changes 
enrich  the  completed  volume. 

In  preparation  for  this  interview  ,  I  consulted  background  material 
at  the  Water  Resources  Center  Archives  on  the  Berkeley  campus;  spoke  with 
Bob's  former  colleagues;  culled  through  files  at  the  EBMUD  Records  Office 

at  the  Oakland  headquarters.  I  prepared  a  draft  outline  of  topics—one 
which  Bob  himself  expanded  with  characteristic  thought fulness  and 
thoroughness.  The  resulting  memoir  follows. 

As  I  write  this  interview  history,  we  are  mourning  the  untimely  death 
of  Frank  Howard  (March  2003),  a  loss  to  all  those  who  knew  him.  The 
Regional  Oral  History  Office  greatly  appreciates  the  impetus  Frank  gave  to 
this  project,  and  the  introduction  written  from  the  vantage  point  of  a 
retired  member  of  EBMUD's  legal  department.  Many  thanks  to  the  East  Bay 
Municipal  Utility  District  for  funding  this  series.  And  more  thanks  to 
Gayle  Montgomery,  former  political  editor  of  the  Oakland  Tribune,  for  the 
fine  personal  introduction  to  Bob  Maddow's  oral  history. 

The  Regional  Oral  History  Office  was  established  in  195A  to  augment 
through  tape-recorded  memoirs  the  Library's  materials  on  the  history  of 
California  and  the  West.  Copies  of  all  interviews  are  available  for 
research  use  in  The  Bancroft  Library  and  in  the  UCLA  Department  of  Special 
Collections.  The  office  is  under  the  direction  of  Richard  Candida  Smith, 
and  the  administrative  direction  of  Charles  B.  Faulhaber,  The  James  D.  Hart 
Director  of  The  Bancroft  Library,  at  the  University  of  California, 

Germaine  LaBerge, 
Interviewer /Editor 

April  2003 

Regional  Oral  History  Office 

The  Bancroft  Library 

University  of  California,  Berkeley 


Regional  Oral  History  Office 
Room  486  The  Bancroft  Library 

University  of  California 
Berkeley,  California  94720 

Your  full  name 

(Please  write  clearly.   Use  black  ink.) 

.  /H-4  £)  ££^U 

Date  of  birth    &  j  /  I/  I  l~j  ^  _  Birthplace 

Father's  full  name 

Occupation  (R.GT/&GA 


.  A/  •  */  • 

Mother's  full  name 

&^r&  (A  Q  Gs    /^T^Ll/f  A  V  ^   *>  • 


Birthplace  L^L-^^TO  /\J  t 

Your  'spouse    ^  L^A 

Your  children 

Cj>/>£b  /X-4  IDA,     Birthplace     &T 

Where  did  you   grow  up? 
Present   community 


Education      [?>  .  A  .    j  fpu  t-TI  OA: 

Occupation  (  s  ) 

V  •£= 

-  1  1 

Areas  of  expertise 


Other  interests  or  activities 

/  C- 

(-  t 

Organizations  in  which  you  are  active x^-g  ^ gig.  . 

/  S»  .f 



[Interview  1:  February  3,  1997]  ##: 

[The  Bancroft  Library  and  law  offices  of  Bold,  Polisner,  Maddow, 
Nelson,  and  Judson] 

Parents  and  Sister 

LaBerge:   This  is  February  3,  1997,  and  I'm  interviewing  Robert  Maddow.   We 
always  like  to  start  from  the  very  beginning,  so  why  don't  you 
tell  me  the  circumstances  of  your  birth? 

Maddow:   I  was  born  in  May  of  1943  in  New  Jersey.   I  guess  that  would  make 
me  a  war  [World  War  II]  baby.   My  parents  were  both  longtime 
residents  of  New  Jersey.   My  father  was  actually  born  in  New  York 
and  my  mother  in  New  Jersey.  They  were  both  the  children  of 
immigrant  families,  my  father's  family  having  come  from  Russia 
and  my  mother's  family  from  Holland. 

LaBerge:   Can  you  give  me  their  names? 

Maddow:   My  father  is  Bernard  Maddow;  he  has  no  middle  name.   He  goes  by 
Bernie.   And  my  mother  is  Gertrude  Smits  Maddow;  she  goes  by 
Trudy.   They  were  both  working  in  the  New  Jersey  area  during  the 
war.   My  father  was  involved  in  aircraft  instruments,  bomb  sights 

'##  This  symbol  indicates  that  a  tape  or  tape  segment  has  begun  or 
ended.   A  guide  to  the  tapes  follows  the  transcript. 

and  things  like  that,  and  his  was  a  critical  skill  field  during 
the  war,  and  so  he  remained  in  the  war  industry  as  opposed  to  in 
the  military  service  throughout  the  entire  period  of  World  War 
II.   He  before  that  had  worked  as  a  watch  repairman;  he  worked 
for  a  company  called  Swartchild,  which  I  can't  spell.  But  he  had 
been  a  salesman  and  had  also  worked  at  the  work  of  repairing  time 
pieces,  and  that's  kind  of  how  he  developed  the  skills  necessary 
for  work  with  aircraft  instruments. 

He  continued  with  that  line  of  work  after  World  War  II.   In 
1946,  my  parents  decided  to  leave  the  East  and  migrate  West. 
They  had  a  1936  Dodge  with  which  they  pulled  a  trailer  across  the 
country.  My  sister  would  have  been  about  seven  at  the  time,  and 
I  turned  three  en  route  from  New  Jersey  to  Arizona,  which  was  our 
ultimate  destination.   We  settled  there  in  Tucson,  Arizona,  in 

LaBerge:  You  mentioned  your  sister;  what's  her  name? 

Maddow:   Her  name  is  Cheryl.   She's  about  four  years  older  than  I  am.   She 
got  married  right  after  high  school.  We  lived  in  San  Diego  by 
this  time,  and  during  high  school,  she  had  started  dating  a 
fellow  who  was  a  little  older,  who  was  from  a  school  nearby. 
While  she  was  in  high  school,  he  was  in  effect  finishing  what  we 
would  today  call  a  junior  college  program.   They  were  married 
when  she  was  just  eighteen.   She  worked  for  many  years  as  a 
letter  carrier  for  the  post  office  and  eventually  ended  up  quite 
a  high  official  in  the  union  with  the  post  office,  and  now  is 
employed  actually  by  the  AFL-CIO,  but  her  work  is  with  the 
American  Red  Cross.  As  a  matter  of  fact,  today  she  is  one  of  the 
people  involved  in  the  disaster  relief  effort.   She's  up  at 
Mather  Air  Force  Base  in  Sacramento,  where  she's  one  of  the 
disaster  relief  coordinators. 

Actually,  her  job  is  kind  of  between  the  labor  movement  and 
the  Red  Cross  in  regard  to  coordination  of  such  things  as  blood 
drives  and  volunteer  efforts,  et  cetera.   So  she  has  done  a  lot 
of  very  interesting  things  and  has  been  out  on  every  type  of 
disaster  imaginable.   She  has  been  in  this  area  for  the 

earthquake  and  the  fire,  and  been  to  Sacramento  twice  for  floods, 
and  went  to  Kauai  after  the  hurricane,  and  went  to  one  of  the-- 
I've  forgotten  which  one  of  the  islands  in  the  Caribbean  after 
another  hurricane,  and  she's  just  done  a  lot  of  interesting 
things  like  that.   She's  my  only  sibling. 

Growing  up  in  Tucson 

LaBerge:   Okay.   And  you  came  to  Tucson  when  you  were  three, 
remember  that? 

Do  you 

Maddow:   I  remember  bits  and  pieces  about  Tucson.   I  have  very  little 

recollection--!  have  essentially  no  recollection  of  New  Jersey 
before  we  left,  except  very  faint  things  about  playing  with  my 
grandparents  and  those  kinds  of  things,  very  faint  memories.  And 
then  the  family  really  kind  of  broke  away  when  we  went  to 
Arizona,  and  so  really  that  New  Jersey  stuff  is  all  behind  me.   I 
remember  little  things  about  the  first  few  years  we  lived  in 
Arizona.   My  father's  first  job  in  the  immediate  postwar  period, 
he  went  into  watchmaking  business,  and  he  worked  for  a  jeweler. 
He  had  a  shop  down  on  the  old  plaza  in  what  was  then  the  heart  of 
Tucson;  now  Tucson  has  grown  so  large  that  you  probably  can't 
even  find  it  any  more.   But  it  was  right  by  the  railroad  depot, 
and  I  remember  going  down  to  my  father's  shop  and  being  taken 
over  to  the  area  of  the  railroad  depot  where  they  were  filming  a 
movie  called  Fury  with  Barbara  Stanwyck.  And  I  still  remember 
after  every  scene,  I  remember  a  man  hollering,  "Get  Miss  Stanwyck 
a  drink!"   [laughter]   I  don't  remember  any  details  other  than 

But  I  also  remember  that  my  father  worked  with  a  wonderful 
family  there,  a  man  who  had  been  in  this  country  from  Mexico  not 
too  many  years  and  had  a  good  little  jewelry  business  there.  He 
loved  my  father's  capabilities,  because  my  father  understood 
watches  and  fine  jewelry,  and  particularly  knew  how  to  deal  with 
gold,  and  this  man  used  to  use  my  father  to  get  involved  with  the 

purchases  that  he  made.  And  some  of  these  were  made  in  Mexico, 
and  it  was  all  legal,  there  wasn't  anything  illicit  going  on;  but 
what  was  interesting  to  me  was  that  a  couple  of  times,  my  family 
would  all  go  with  my  father  when  we'd  go  on  these  visits.  And  I 
remember  going  to  a  place  that  was  actually  hewed  out  of  the  side 
of  a  hill.   It  was  a  room — it  could  be  110  degrees  outside  in.  the 
streets  of  Nogales,  but  when  you  went  to  this  place  where  this 
gold  merchant  had  his  supplies  that  he  was  selling  to  my  father '  s 
employer,  it  was  cool,  because  it  was  in  solid  rock.   I  was 
probably  four  at  the  time,  but  I  can  remember  that  room.   It's  a 
strange  little  thing  that  sticks  with  me. 

But  we  lived  in  Arizona  then  from  1946  to  1954. 
LaBerge:  Can  I  back  up  a  minute? 
Maddow:   Of  course. 

LaBerge:   What  caused  your  parents  to  go  to  Arizona? 

Maddow:   My  mother  was  suffering  with  asthma,  and  one  of  the  suggestions 
made  to  her  was  that  the  desert  might  be  better  for  her.   In  the 
long  run,  it  turned  out  that  it  was  not.   She  was  one  of  those 
people  for  whom  the  desert  was  not  the  right  answer,  and  ended  up 
eight  years  later  going  to  San  Diego ,  and  she ' s  not  had  any 
asthma  problems  to  speak  of  since  she's  been  in  San  Diego.   Which 
is  a  little  bit  out  of  the  ordinary  with  regard  to  asthma,  but 
apparently,  the  case  is  not  totally  unique.   But  that's  what  the 
experience  was . 

My  parents  both  wanted  to  get  away  from  the  New  Jersey 
experience,  I  think.   It  was  a  big  move  for  them,  but  something 
that  I  think  they  were  really  ready  to  make  in  1946.   So  they  had 
planned  it  for  quite  some  time.   In  the  immediate  aftermath  of 
the  war,  of  course,  a  lot  of  the  industries — my  father  had  worked 
at  Bendix  Industries,  that's  the  wartime  employer,  and  of  course 
they  scaled  back  a  lot  by  1946.   So  they  knew  what  was  coming, 
and  they  planned  to  make  this  move  and  purchased  this  car  and 
trailer,  and  made  the  move. 

We  moved  in  the  trailer,  and  then  shortly  thereafter,  my 
parents  rented  a  home,  an  old  red  brick  house  on  Columbus 
Boulevard  in  sort  of  north  Tucson,  not  very  far  from  Davis 
Monthan  Air  Force  Base.   I  remember  living  on--Columbus  Boulevard 
was  a  dirt  road,  and  there  were  no  real  storm  drains  in  that 
area,  so  every  house  had  a  little  bridge  over  a  drainage  ditch  to 
get  to  the  house.   Perhaps  my  first  memory  that  relates  to 
anything  having  to  do  with  water  was  every  year  when  it  would 
rain  in  Tucson- -which  was  a  big  event- -you  would  get  what  was  in 
effect  a  little  flash  flooding,  because  the  drainage  direction  in 
our  area  was  away  from  the  air  base,  which  had  these  huge 
concrete  runways.   And  so  we'd  get  this  big  flash  of  water  going 

But  that's  where  I  started  elementary  school.  My  sister 
went  pretty  much  all  through  elementary  school  while  we  lived  on 
Columbus,  although  she'd  started  before,  of  course;  she  was  seven 
years  old  when  we  made  the  move,  but  we  went  to- -golly,  what  was 
the  name  of  that  school?  Davidson  School.   They  had  no 
kindergarten;  I  guess  I  was  there  in  first,  second,  and  third 
grades,  and  then  my  parents  bought  a  home  on  the  other  side  of 
town  in  a  new  subdivision  called  Mission  Manor.   It  was  called 
Mission  because  the  property  that  the  developer  had  purchased 
adjoined  a  portion  of  the  Pima  Indian  reservation  in  the  location 
where  they  have  a  mission  that's  very  famous.   It's  called  San 
Xavier  del  Bac  [spells].   It  used  to  be  called  the  White  Dove  of 
the  Desert,  and  it  was  very  famous  because  it  had  two  towers  out 
in  front,  one  of  which  had  a  dome  and  the  other  of  which  had  a 
flat  top.  And  the  reason,  by  legend,  for  only  one  of  the  domes 
having  been  finished  is  that  supposedly  one  of  the  Indians  who 
was  working  on  the  first  dome  fell  to  his  death,  and  so  the 
Indians  wouldn't  go  up  and  build  another  dome.   But  it's  a 
magnificent  mission,  and  it's  still  very  much  sort  of  a  tourist 

We  lived  in  the  seventh  house  in  this  subdivision,  seventh 
house  to  be  finished.  When  we  first  moved  there,  we  could  see 
the  mission  out  the  back  of  our  house,  but  a  few  months  later, 

there  were  hundreds  of  houses  between  us  and  there,  and  there 
wasn't  much  of  a  view. 

I  finished  elementary  school  there,  actually  skipped  a  grade 
I  guess  there,  so  started  off  in  the  fourth  grade  and  they  moved 
me  into  the  fifth.   Just  as  I  was  finishing  sixth  grade  and  my 
sister  finishing  ninth  grade,  on  the  same  day  we  got  in  the  car 
and  drove  to  San  Diego  and  moved  to  San  Diego. 

LaBerge:  And  was  that  also  for  your  mother's  health? 

Maddow:   Primarily.   The  last  couple  of  years  that  we  were  there,  she 

really  struggled  with  the  asthma,  to  the  point  where  there  were 
times  when  she  really  had  trouble  breathing,  had  to  take 
injections  of  adrenaline.   She  had  to  learn  to  inject  herself  at 
one  point;  my  father,  of  course,  would  also  be  able  to  do  it. 
She  was  really  struggling  from  a  health  perspective . 

My  father  was  working  back  in  the  aerospace  industry—we 
didn't  call  it  that  in  those  days;  the  airplane  industry  in  those 
days.   He  was  working  at  a  company  called  Grand  Central,  which 
was  doing  instrument  work  on  jet  bombers  for  the  U.S.  Air  Force, 
and  so  all  these  great  big  bombers  called  B-47s  would  come  into 
the  Tucson  Municipal  Airport,  which  is  where  Grand  Central  had 
.  its  location.   It  was  right  across  the  street  from  the  place  I 
went  to  school.   My  father  would  work  on  their  instrumentation. 

But  in  1953  in  the  summer,  we  went  out  to  San  Diego  for  a 
vacation,  and  my  mother  really  enjoyed  and  thrived  being  in  that 
beach  weather,  and -so  they  began  immediately  starting  to  try  and 
figure  a  way  to  make  the  move,  and  my  father  began  to  look  into 
job  opportunities.   My  mother  at  this  time  was  working  at  Hughes 
Aircraft.   One  thing  led  to  another,  and  my  father  was  able  to 
line  up  a  job  at  Convair  in  San  Diego,  which  was  a  big  defense 

And  so  we  moved  to  San  Diego  in  1954,  and  a  few  months  later 
moved  to  a  community  called  Pacific  Beach,  which  is  just  north  of 
the  Mission  Bay  area,  just  south  of  La  Jolla  in  San  Diego.  My 

parents  have  lived — they  lived  there  for  I  guess  seven  years,  and 
then  in  1961  while  I  was  away  at  college,  they  moved  to  an  area 
just  east  of  there,  just  up  the  hill  from  Mission  Bay,  and 
they're  still  there.  They're  both  eighty-one  years  old  now. 

Childhood  Pastimes.  Interests.  Hobbies 

LaBerge:  Wow.  Tell  me  what  kinds  of  things  you  liked  to  do  as  a  boy. 

Maddow:   Play  baseball.   I  can  remember  in  the  summer  when  we  lived  in  the 
Mission  Manor  subdivision,  so  that  would  have  been  I  guess  like 
three  summers  there,  the  other  kids  in  the  neighborhood  and  I 
would  be  outside  all  day,  every  day,  fooling  around,  usually 
involving  playing  baseball.  We  didn't  have  a  real  field,  but  we 
kind  of  cleared  off  an  area  and  put  all  the  rocks  over  to  the 
side,  and  the  subdivider  had  his  corporation  yard  right  near 
there  and  they  let  us  do  it.   We  would  go  out  there  and  play 
every  variety  of  baseball  that  you  could  with  a  small  number  of 

I  remember  also  that  my  sister,  who  was  a  wonderful  athlete, 
she  was  a  little  older  than  all  the  boys  who  I  hung  around  with. 
She  was  a  real  tomboy;  she  used  to  give  us  a  very  hard  time.   She 
taught  herself  one  summer  to  be  a  switch-hitter,  and  she  prided 
herself  on  the  fact  that  she  could  hit  the  ball  farther  left- 
handed  than  any  of  we  little  twerps  could  right-handed;  we  were 
all  right-handed. 

I  also  remember  sort  of  wide-open  spaces,  because  in  south 
Tucson  where  we  lived,  there  had  not  been  a  lot  of  development 
yet,  and  a  kid  could  get  on  a  bike  and  go  forever  on  dirt  roads, 
and  sort  of  be  out  in  the  middle  of  the  desert.   So  we  learned 
what  it  was  like  to  be  out  there.  You  had  a  BB  gun,  and  you'd 
point  at  things,  and  there  were  always  kids  who  would  have 
firecrackers,  and  none  of  us  ever—we  just  kind  of  grew  up  with 


them.  They  weren't  something  awful,  because  we  had  learned  to  be 
. careful  and  nobody  ever  hurt  themselves . 

There  was  sort  of  an  eroded- -back  then  we  called  it  an 
arroyo;  I  don't  know  what  you'd  call  it  out  here—like  a  creekbed 
where  when  it  rained,  you  could  get  a  lot  of  water,  but  then  it 
would  just  kind  of  peter  out  in  the  desert.  But  it  left  these 
eroded  gullies  and  things  like  that,  and  for  kids  who  wanted  to 
roam  around  out  in  the  desert,  that  was  fun.   It  was  like  having 
your  own  little  canyons,  little  forts  and  things  like  that.   So 
as  little  kids,  we  always  did  that. 

I  remember  all  summer  running  around  in  shorts  and  shoes  and 
getting  just  baked  in  the  sun.  We  never  thought—none  of  us 
thought  to  wear  .a  hat,  and  nobody  wore  sunglasses  or  anything 
like  that. 

In  1954  when  we  moved  to  San  Diego,  we  went  to  see  a  movie. 
I  couldn't  read  the  credits,  and  my  mother  immediately  said, 
"There's  something  wrong  with  your  eyes,"  took  me  to  an  eye 
doctor,  and  he  said,  "You  really  do  have  a  nearsightedness 
problem."  He  began  to  talk  to  me  and  to  my  mother  about  it,  and 
he  became  convinced  that  my  nearsightedness  was  reinforced  or 
exacerbated  by  being  outside  all  day  in  the  sun  and  probably 
squinting.   He  told  me  that  what  I  had  been  doing  as  a  little  kid 
probably  hastened  the  time  I  would  have  to  start  wearing  glasses, 
so  there  I  was  at  age  eleven,  having  to  wear  my  first  pair  of 
glasses  because  of  too  much  sunshine  as  a  nine-year-old. 

My  father  used  to  like  to  get  in  the  car  and  drive  someplace 
on  the  weekend,  and  in  those  days  I  used  to  hate  it,  and  now,  I 
look  back  on  it  and  I  still  remember  some  of  the  things  that  we 
would  go  to  visit  in  Arizona,  which  is  a  wonderful  place  to  go 
and  poke  around.   And  now,  I've  inherited  that  trait.   My  father 
never  goes  anywhere  any  more;  he's  very  reclusive.   But  I  love  to 
get  in  the  car  and  just  go  someplace,  and  that's  one  of  the 
advantages  of  living  here,  is  because  within  four  hours,  you  have 
so  many  interesting  places. 

But  we  would  go  to  the  old  copper  mining  regions,  or  to  the 
areas  where  there  were  Indian  ruins,  or  out  to — sometimes  we'd  go 
pretty  great  distances.  We  went  to  the  Grand  Canyon,  and  to  Oak 
Creek  Canyon,  which  I  still  remember  when  I  was  a  little  kid,  and 
I  didn't  go  back  again  until  last  year.  And  I  have  to  say,  my 
memories  were  better  than  my  vision  of  it  this  time.  But  I 
remember  doing  things  like  that.  We  used  to  go  up  into  the 
mountains  right  near  Tucson  to  a  place  called  Sabino  Canyon 
[ spells ] ,  which  was  an  old  place  that  the  Indians  had  used  during 
the  summers,  because  there  was  always  water  there.   Sabino  Canyon 
had  a  recreation  area  that  I  remember  fairly  vividly  from  when  I 
was  a  little  kid.  You  could  get  there  in  a  couple  of  hours 
drive,  and  in  the  baking  heat  of  Tucson  summers,  it  was  one  of 
the  few  places  you  could  go  for  relief.   Nobody  had  air 
conditioners  in  those  days.   If  you  were  lucky,  you  had  a  swamp 
cooler,  an  evaporative  cooler,  but  they  never  really  did  the  job. 
Probably  contributed  to  my  mother's  asthma,  as  a  matter  of  fact; 
that's  what  we  were  told. 

But  anyway,  those  were  the  kinds  of  things  that  we  did. 
I  also  was  very  bookish. 
LaBerge:   That's  what  I  wondered,  if  you  liked  to  read. 

Maddow:   I  did.   By  the  time  I  had  finished  junior  high  school,  I  think  I 
had  read  every  book  in  the  San  Diego  Public  Library  with  the 
Dewey  Decimal  System  number  of  917.54,  which  means  it  was  about 
World  War  II.   I  had  grown  up  with  both  parents  working  for 
defense  contractors,  I  saw  airplanes  all  the  time  in  Tucson.  My 
father  worked  on  B-47s.   Every  B-47  ever  made  flew  right  over  my 
sixth-grade  classroom  at  an  altitude  of  about  400  feet  or 
something.   And  for  a  kid  who  was  fascinated  with  airplanes, 
Tucson  was  a  wonderful  place,  because  Davis  Monthan  Air  Force 
Base  was  kind  of  the  graveyard  for  the  thousands  of  military 
planes  that  were  no  longer  needed  after  the  war.  Many  of  them 
were  just  stored,  and  then  they  had  places  where  they  sort  of,  I 
don't  know,  salvaged  parts  of  them  and  scrapped  the  rest.   And  so 


there  were  always  airplanes  flying  around,  and  that  kind  of 
became  a  fascination  for  me. 

And  then,  of  course,  we  moved  to  San  Diego,  and  on  the 
weekends,  the  navy  would  have  open  house  on  ships.  My  dad  got 
interested  in  that,  and  then  I  could  just  take  the  bus  down 
there.   So  I  got  interested  in  that. 

So  I  began  to  read  about  the  war,  and  read  everything  I 
could  get  my  hands  on  in  those  days.   I  don't  know  why,  but  that 
just  was  a  point  of  fascination  for  me. 

LaBerge:  And  then  you  later  joined  the  air  force, 
to  do  with  that? 

Did  that  have  anything 

Maddow:   No,  and  that's  another  story,  which  I'll  be  happy  to  tell  you. 
But  basically,  what  I  was  trying  to  do  when  I  joined  the  air 
force,  by  that  time,  I  had  graduated  from  law  school,  and  I 
didn't  really  want  to  carry  a  rifle  in  the  Mekong  Delta,  so  I 
thought  that  it  was  an  alternative  to  being  drafted.  I  was  able 
to  get  into  an  officer  training  program,  and  that's  how  I  ended 
up  with  the  air  force.   But  I  never  flew  anything  more  exotic 
than  a  desk  in  the  air  force.   [laughter] 

The  other  fascination  for  me  in  those  days,  I  have  to  say, 
was  baseball.   I  loved  everything  about  baseball.  Tucson  was  the 
spring  training  home  of  the  Cleveland  Indians .   There  was  a 
ballpark  there  called  Hy  Corbett  Field  [spells].   It's  still 
there;  it's  still  where  the  Indians  train.   And  we  used  to  go 
there  sometimes  in  the  summer.   I  still  remember  my  sister  being 
stepped  on  by  Lou  Boudreau  at  the  time  he  was  both  the  manager 
and  the  shortstop  for  the  Cleveland  Indians. 

But  she  formed  a  great  fascination  for  the  New  York  Giants 
who  trained  up  the  road  in  Phoenix  and  used  to  come  down  and  play 
the  Indians,  and  she  really  liked  the  Giants.   And  so  I,  of 
course,  had  to  become  a  Brooklyn  Dodgers  fan,  just  because 
sibling  rivalries  and  all  that.   So  we  used  to  talk  about  and 
argue  about  baseball  all  the  time.   And  we  played  it  a  lot. 


And  I  used  to  like  to  listen  to  the  radio  broadcasts  of  the 
Tucson  Cowboys,  who  were  the  minor  league  team  that  played  in  Hy 
Corbett  during  most  of  the  year.  I  can  still  remember  listening 
to  those  broadcasts,  which  in  those  days,  of  course,  were 
interesting  because  the  announcer  didn't  have  a  fancy  press  box 
or  something;  he  pretty  much  sat  up  at  the  top  of  the  stadium. 
If  we  went  to  the  game,  I  can  remember  seeing  where  he  sat.   He 
had  a  little  box  around  him;  he  wasn't  completely  out  in  the 
open.  But  he  was  really  part  of  the  game,  so  you  got  all  that 
noise  and  everything. 

But  then  when  the  team  would  go  to  play  in  another  city, 
they  couldn't  afford  to  send  the  radio  announcer,  so  he  would 
stay  back  in  Tucson  and  get  the  wire  service  or  ticker  tape 
accounts  of  what  was  going  on  in  the  game,  and  he  would  do  what 
was  called  a  re-creation.  They  had  a  tape  or  something  of  crowd 
noise  which  he  could  turn  up  if  he  thought  he  should,  and  to  make 
the  sound  of  the  bat  and  the  ball  I  think  he  hit  two  sticks 
together  or  something.   And  I  can  remember  listening  to  re 
created  games  when  I  was  a  little  kid  and  thinking  that  that  was 
just  great,  to  think  that  somebody  could  be  giving  us  that 
wonderful  word  picture  when  they  weren't  even  there. 

But  those  were  big  memories,  big  sort  of  focus  points  for 
me,  being  a  kid  in  Arizona,  I  guess. 

Junior  High  and  High  School  in  San  Diego 

LaBerge:  And  then  when  you  were  in  San  Diego,  did  you  play  in  school,  or 
did  I  read  that  you  played  basketball? 

Maddow:   I  played  a  little  baseball  and  a  little  basketball.   I  wasn't 

very  good  at  either  one.  The  only  high  school  sport  I  played  was 
basketball.   I  fooled  around  with  the  track  team  for  a  couple  of 
years,  but  I  wasn't  really  all  that  interested,  but  I  did  it, 
because  I  had  a  basketball  coach  who  thought  it  would  be  a  good 


idea  for  all  of  us  to  do  that  for  conditioning.   I  wasn't  nearly 
good  enough  to .play  on  our  high  school  baseball  team;  we  had  an 
excellent  team  in  those  days,  and  I  was  a  cut  below  all  those 
fellows.  But  I  played  in  kind  of  an  American  Legion  program,  and 
Colt  League,  and  things  like  that.   I  wasn't  very  good,  but  I 
hung  in  there,  and  I  had  a  lot  of  fun.   I  hung  around  with  the 
guys  with  whom  I  was  friendly.  We  all  were  involved  in  that. 

One  of  our  big  attractions  in  junior  high  school  in 
particular  was  basketball,  though.  There  was  a  recreation  center 
just  adjacent  to  our  junior  high  school,  where  four  or  five  of  my 
junior  high  classmates  and  I  used  to  spend  seems  like  every 
waking  hour.  We  just  played  basketball  a  whole  lot  there,  and 
once  again,  we  weren't  very  good,  but  we  were  all  about  the  same 
degree  of  ability  or  lack  of  ability.  And  had  a  lot  of  fun  doing 
that.   It  was  just  an  activity  we  all  got  really  into. 

Several  of  us  began  to  play  tennis  in  those  days.   There 
were  three  other  guys  that  I  played  a  fair  amount  of  tennis — one 
of  them  actually  got  to  be  pretty  good.   He  was  trying  to  get  as 
good  as  he  could,  because  there  was  a  girl  in  our  class  who  was  a 
nationally  ranked  tennis  player  who  actually  won  Wimbledon 
singles  in  1962,  Karen  Hantze.  This  guy  just  kind  of  doted  on 
her;  she  didn't  have  very  much  to  do  with  him,  but  he  figured 
that  maybe  if  he  got  good  enough,  some  day  she'd  notice  him.   He 
never  quite  got  that  good.   [laughter]   It's  funny  how  those 
things  come  back. 

I  had  a  kind  of  a  flashback  to  those  days  and  that  old  gym 
the  other  day.  My  wife  and  I  were  going  to  a  movie  in  Walnut 
Creek,  and  we  went  to  Mel's  Diner  to  have  a  hamburger  beforehand, 
and  up  on  the  wall  of  Mel's  Diner,  they  have  a  bunch  of  signs 
from  old  products  from  the  forties  and  fifties  and  sixties.   A 
lot  of  them  were  for  a  soft  drink  called  Grapette,  and  I  can 
remember  drinking  Grapette  by  the  bottle  when  we  were  playing 
basketball  in  the  gym.   You'd  pay  a  dime,  and  it  was  one  of  those 
old  Coke  machines  with  the  glass  bottles  hanging  up  by  their 
neck,  and  you'd  slide  them  out.   It  was  always  a  challenge  to  see 
if  you  could  get  out  two  for  one  dime;  you  never  could.   But  I 


can  remember  gallons  of  Grapette  and  many  hours  of  basketball, 
and  my  mother  going  nuts  whenever  I'd  break  my  glasses  playing 
basketball,  which  was  a  frequent  occurrence.  But  those  were  the 
— San  Diego  was  a  wonderful  place  to  grow  up,  because  we  had  a 
beach,  we  had  Mission  Bay,  and  a  lot  of  activities  that  were  safe 
and  easily  accessible.   I  enjoyed  those  years  of  junior  high 
school  and  high  school  very  much. 

LaBerge:   Did  you  have  any  favorite  school  subjects? 

Or  did  you  like 

Maddow:   I  did  like  school,  and  I  was  a  good  student,  and  I  got  involved 
in  a  lot  of  things.  And  you'll  laugh  when  you  hear  this,  and 
maybe  I'm  saying  it  more  in  hindsight  than  anything  else,  but  one 
of  the  classes  that  probably  meant  the  most  to  me  in  looking  back 
then  in  terms  of  forming  my  study  habits,  was  Latin.   I  took 
Latin  from—there  was  a  brother  and  sister  teaching  team  at  that 
school,  Miss  Shepherd  and  Mr.  Shepherd,  both  spinsters,  both  old, 
very  old-fashioned—they  almost  sounded  like  they  were  English 
but  they  weren't,  but  they  had  this  very  almost  stentorian  style 
of  speaking.   I  took  Latin  from  Miss  Shepherd  and  it  taught  me 
English  which  I  took  from  Mr.  Shepherd.   I  learned  something 
about  how  English  works  by  studying  Latin.   I  learned  that  I 
really  had  to  study.   In  hindsight,  it  was  very  useful.  And  yet, 
I  also  remember  funny  things  about  it  and  all.   But  that  had  a 
big  impact  on  me. 

I  had  to  work  hard  in  mathematics,  and  I  thought  I  was  good 
at  it,  but  I  wasn't  as  good  as  I  thought.   [laughter]   But  I  did 
enjoy— in  those  days,  I  thought  I  was  enjoying  math.  They  had 
good  math  teachers,  and  I  think  that  was  a  reflection  of  them 
more  than  it  was  of  my  abilities  or  anything. 

I  have  positive  recollections  of  my  science  classes  in  both 
junior  high  school  and  high  school,  and  particularly  in  high 
school  my  chemistry  class  from  Miss  Perry.   I  really  enjoyed  the 
chemistry  program,  and  I  even  went  one  summer  and  took  an  organic 
chemistry  laboratory,  where  I  worked  all  summer  on  a  project 
involving  trying  to  produce  plastics .   I  remember  we  had  to  work 


with  a  lot  of  acid.  The  laboratory  tables  hit  me  about  mid- 
thigh,  and  every  pair  of  pants  I  owned  had  holes  in  it  right 
there  from  the  acid  that  we  one  way  or  another  would  splatter  on 
the  laboratory  table. 


Maddow:   I  was  president  of  my  class  in  my  junior  and  senior  year.  And  I 
worked  pretty  hard  at  that.   I  was  also  involved  in  a  service 
club  called  the  Key  Club,  which  was  kind  of  a  scholastic  version 
of  Kiwanis.  The  Kiwanis  were  a  very  important  service 
organization  in  our  community.  Frankly,  the  kids  who  were  kind 
of  the  leaders  of  our  school  became  members  of  the  Key  Club .   We 
did  a  lot  of  things  together,  activities  involving  school  and 
things  outside  the  school.   I  remember  we  had  a  huge  canned  food 
drive  each  year,  and  we  ended  up  taking  these  two  very  large 
truckloads  of  canned  food  down  to  Mexico,  down  to  Tijuana.   This 
was  in  my  junior  year- -we  did  it  both  my  junior  year  and  my 
senior  year. 

In  my  junior  year,  I  remember  it  was  this  rainy,  rainy  day, 
being  in  the  back  of  this  truck  and  seeing  these  kids  from 
Tijuana,  many  of  whom  had  no  shoes,  and — Tijuana  was  pretty  sad 
in  those  days.   It's  even  sadder  now.   But  that  was  a  real 
education  for  a  lot  of  us. 

And  those  Key  Club  things  were  useful  in  terms  of  beginning 
to  develop  a  kind  of  a  service  ethic,  because  when  you're  in  high 
school,  you're  interested  in  what's  going  on  around  you,  and  you 
look  like  one  of  the  crowd,  and  is  the  girl  you're  interested  in 
going  to  pay  any  attention  to  you  that  week  or  whatever.  To  have 
something  like  the  Key  Club  that  gets  you  out  of  that  mold  and 
says,  "Hey,  there's  another  world  out  there  that  you  ought  to  be 
thinking  about,"  that  was  very  useful,  I  thought. 

And  then  finally,  one  year  I  got  involved  in  the  debate  club 
or  society,  and  our  topic  for  that  year  was  foreign  aid.   We  had 
to  go  off  and  debate  with  students  from  other  schools  and  all. 
Those  of  us  who  were  involved  in  debate  went  off  and  participated 


in  a  model  United  Nations  out  at  San  Diego  State  College- -now  I 
guess  it's  San  Diego  State  University.  Things  like  that  began  to 
become  a  part  of  my  life  when  I  was  in  high  school. 

It  was  a  pretty  diverse  existence.  I  was  young,  because  I 
had  skipped  a  grade.   I  was  sort  of  one  of  the  people  who  I  guess 
became  one  of  the  leaders  of — 

LaBerge:  Well,  I  guess,  if  you  were  president  two  years  in  a  row,  and-- 

Maddow:   Maybe  it  was  because  nobody  else  wanted  to  do  it.   That's  not 

quite  true,  because  there  were  always  elections  and  that  sort  of 
thing.   But  I  don't  know.   I  think  I  had  my  head  screwed  on 
reasonably  decently  well,  and  I  guess  was  less  of  a  threat  than 
the  other  guy  or  some  such  thing,  I  don't  know. 


LaBerge:   Any  influences?  Uncles,  aunts,  teachers,  your  sister? 

Maddow:   Well,  uncles  and  aunts  not  so  much,  because  we  were  the  only  ones 
in  the  family  who  had  gone  West.   For  a  while  when  we  lived  up  in 
Tucson,  my  grandfather  lived  with  us,  but  that  wasn't  too  many 
years.   I  don't  remember--!  remember  him  as  a  strong,  domineering 
grandparent,  but  I  don't  remember  many  details  beyond  that.   I 
can't  say  I  really  had  a  closeness  to  any  of  my  grandparents. 

In  terms  of  influences  when  I  was  going  through  in 
particular  in  the  junior  high  and  high  school  years,  there  were 
some  people  who  had  influences  on  me,  and  it's  quite  a  range. 
There  were  coaches.   I  really  had  a  great  deal  of  admiration  for 
some  of  the  coaches  I  knew.   There  were  business  people,  because 
through  the  Key  Club  or  through  parents  of  people  I  went  to 
school  with,  I  got  to  know  some  of  the  business  people  in  town. 
For  example,  one  of  my  friends  was  the  son  of  a  man  who  was  an 
executive  with  the  telephone  company,  and  he  was  a  guy  who  just 


had  a  way  of  always  making  time  for  young  people.  That  was  for 
his  own  son,  but  also  for  young  people  in  general.   I  remember 

thinking  that  that  made  him  a  pretty  special  guy.  That  was  Mr. 

And  then  there  were  a  couple  of  families  that  I  had  gotten 
to  know  through  junior  high  school,  but  as  high  school  students, 
we  went  off  to  different  high  schools,  and  yet  I  stayed  fairly 
close  to  some  of  those  families.  There  was  a  fellow  who  I  stayed 
friends  with  even  though  we  were  in  different  schools .  His 
father,  whose  name  was  Ed  Seipel  [spells] — he's  dead  now — but  he 
was  a  real — a  person  with  very  high  ethical  and  moral  standards 
who  was  somebody  that  kids  kind  of  gravitated  around,  and  that — I 
always  liked  to  be  around  Mr.  Seipel.  He  worked  for  Bekins 
Moving  Company.-  I  mean,  he  wasn't  a  mover  and  shaker  or  anything 
like  that—oh,  bad  choice  of  words.   [laughter]   But  I  mean,  he 
wasn't  a  captain  of  industry  or  anything  like  that;  he  was  just 
an  ordinary  guy,  didn't  make  very  much  money.   But  he  was  a  real 
special  guy,  and  I  remember  him  very  vividly. 

And  then  through  high  school,  I  became  close  friends  with  a 
fellow  named  John  Wester  who  had  grown  up  in  Alaska.   His  father 
was. with  a  company  that  owned  a  big  hotel  up  there,  and  then  the 
hotel  got  bought  out  by  a  larger  company  and  they  moved  him  down 
to  San  Diego.   John's  father  was — he  didn't  say  very  much,  but 
you  just  knew  that  when  he  spoke,  you  needed  to  listen,  because 
here  was  a  guy  who  had  achieved  a  great  deal  in  his  life  in  a 
number  of  ways,  and  he  was  sort  of  stern  and  unapproachable,  but 
he  wasn't  tough  on  the  kids,  either  his  own  kids  or  the  friends 
of  his  kids.  He  wasn't  real  outgoing  like  Mr.  Taylor  was,  but 
when  he  talked  to  us,  when  we  were  at  their  house  or  something — 
and  we  were  at  their  house  a  lot,  because  they  had  a  pool;  they 
were  the  only  people  we  knew  who  had  a  swimming  pool- -you 
listened  to  Mr.  Wester.   If  he  started  talking  to  you  about  going 
off  to  college  and  getting  an  education  and  what  you  should  be 
thinking  about  in  that  regard,  you  listened.  Because  Mr.  Wester, 
he  probably  knew  some  things . 


So  people  like  that  who  I  remember  vividly.  But  just  as 
vividly,  perhaps  even  more  vividly,  I  remember  a  teacher.  A  math 
teacher  named  Mr.  Stout.  One  of  my  best  friends  in  those  days 
was  a  girl  named  Julie  Eiland,  and  Julie's  older  brother  Mike  had 
been  a  classmate  of  my  sister's.  Both  my  sister  and  Mike  had  had 
Mr.  Stout,  and  then  Julie  and  I  came  along  three  years  later  and 
had  Mr.  Stout.  He  was  a  Southerner;  he  had  a  real  kind  of  a 
drawl  in  the  way  he  talked.  He  was  a  pretty  good  math  teacher. 
He  was  a  nice  guy,  and  we  all  kind  of  looked  up  to  him.  We 
always  knew  that  if  you  were—if  the  kids  were  out  knocking 
around  on  a  Friday  night  and  somebody  had  a  flat  tire  or 
something,  we  all  knew  where  Mr.  Stout  lived,  and  he'd  help.   He 
was  the  kind  of  guy  who,  if  kids  needed  somebody  to  talk  to,  they 
could  always  go  and  talk  to  Mr.  Stout.  And  if  you  just  wanted  to 
go  and  talk  to  him  because  he  was  fun  to  talk  to,  that  was  okay 
too.   I  remember  people  like  that  very  vividly. 

College  Choices 

LaBerge:   How  did  you  decide  to  go  to  Stanford,  and  where  else  did  you 
apply?  Did  you  always  know  you  were  going  to  go  to  college? 

Maddow:   Pretty  much.   See,  my  sister  got  married  right  out  of  high 

school.   She  was  very  bright,  and  probably  made  a  mistake  in 
getting  married  as  young  as  she  did,  in  hindsight.  I  mean,  she 
would  say  that;  I'm  not  saying  that.  She'd  say  that,  because 
there  were  a  lot  of  things  beyond  what  she  did  in  her  life—she's 
had  a  good  life.   She's  divorced  now,  she  has  two  grown  kids  and 
three  grandchildren.   She's  done  wonderful  things  in  her  life, 
done  a  lot  of  interesting  things.  But  I  think  that  she  probably 
feels  that  her  horizons  were  smaller  than  they  could  have  been, 
had  she  not  married  as  young  as  she  did. 

In  my  case,  it  was  just--I  was  going  to  college.   I  mean, 
there  just  wasn't  too  much  doubt  about  it. 

LaBerge:   In  your  mindi  and  in  your  parents'? 

Maddow:   I  think^so.  Certainly  in  mine,  and  I  think  my  parents  had  a  high 
expectation,  let  me  put  it  that  way.   So  when  I  would  talk  about 
going  to  college,  there  really  wasn't  much  question. 

In  terms  of  going  to  Stanford  or  other  places,  we  had  gone 
on  a  vacation  up  towards  the  north,  and  I'd  seen  Stanford.   I 
didn't  know  anybody  there  really.   I  guess  I  did  know  one  guy 
who'd  gone  there,  but  I  didn't- -there  wasn't  anybody  in  my  family 
through  whom  I  really  learned  very  much  about  colleges.  But  I'd 
done  a  lot  of  reading,  and  I'd  done  a  lot  of  talking  to  students 
from  years  ahead  of  me  in  high  school,  and  to  faculty  people,  and 
I  had  decided  that  Stanford  was  probably  the  best  school  in 
California,  and  so  I  figured,  by  golly,  I'm  going  to  take  a  shot 
at  that. 

And  somebody,  one  of  my  teachers,  I  think,  told  me — I  think 
it  was  Mr.  Stout,  now  that  I  think  about  it- -who  said,  "Well,  one 
of  the  things  you  ought  to  think  about  is  aiming  at  the  level  of 
school  you  think  would  be  your  ideal,  and  applying  there.  And 
aiming  at  the  level  of  school  that  you  think  is  right  where 
you're  probably  best  situated,  and  making  sure  you  have  a 
fallback."  And  so  my  ideal  was  Stanford.   The  place  to  which  I 
thought  in  those  days  that  I  was  perfectly  focused  was  this 
place,  Berkeley.  And  my  fallback  was  San  Diego  State. 

And  I  still  remember  as  a  senior  in  high  school  how  many 
kids  would  sign  other  kids'  yearbooks--we  called  them  annuals  in 
those  days—sign  somebody  else's  annual  with  "SYAS"  —  "See  you  at 
State."   [laughter]  Most  of  the  kids  from  my  class  who  went  to 
college  I  think  did  go  to  State. 

But  I  decided  that  Stanford  was  an  ideal,  and  you  see,  this 
was  the  late  fifties.  People  were  starting  to  set  goals  for 
America  that  I  kind  of  latched  onto,  like  the  space  program, 
which  was  the  particular  thing  that  had  kind  of  caught  my 
attention  by  this  time.   We  were  being  challenged,  the  San  Diego 
industries  were  so  focused.   Convair  had  created  what  was  called- 


-no,  wait  a  minute --Convair  became  General  Dynamics,  and  General 
Dynamics  had  this  program  of  building  rockets.  They  built 
something  called  the  Atlas,  which  was  a  guided  missile,  an  ICBM. 
But  it  also  became  a  booster  for  satellites. 

LaBerge:   By  this  time,  did  your  dad  work  for  General  Dynamics? 

Maddow:   Yes,  but  he  was  in  the  Convair  division,  right.  And  my  mother 
also  worked  there  as  a  secretary  in  their  headquarters. 

But  everybody  was  thinking  about  space.   It  was  the  late 
fifties,  and  people  were  thinking  about  space,  what  led  up  to 
Sputnik  and  all  this  kind  of  stuff.  This  was  before  John  Kennedy 
issued  the  challenges  to  us  and  all  that.  But  I  decided  that,  by 
golly,  one  of  the  things  that  I  could  do  would  be  to  become  an 
engineer  and  work  in  the  missiles  and  space  type  things,  or  in 
aeronautics,  something  like  that.   So  I  had  decided  probably  in 
the  beginning  of  my  junior  year  that  I  was  going  to  shoot  for  a 
school  where  I  thought  I  could  get  a  really  good  education  and 
the  opportunity  to  really  do  something  in  those  areas,  space 
programs,  et  cetera.   So  when  I  was  going  off  to  college,  I 
wanted  to  be  an  engineer,  beat  the  Russians  to  the  moon  and  all 
these  things.  And  Stanford  had  a  wonderful  program.  Of  course, 
so  did  Berkeley. 

Stanford  University.  1960-1964 

Maddow:   So  I  applied  to  both,  and  was  accepted  to  Berkeley  before  I  was 
accepted  at  Stanford.   I  was  all  primed  and  ready  to  go  to 
Berkeley  until  the  Stanford  thing  came  along,  and  you  can't  turn 
Stanford  down.   That  was  the  way  I  looked  at  it,  anyway.   Now,  my 
parents  blinked,  of  course,  because-- 

LaBerge:   The  price? 


Maddow:   Yes.  And  they  made  just  enough  money--!  mean,  it  was  the  same 

then  as  it  is  now,  it's  just  that  orders  of  magnitude  difference. 
They  made  just  enough  money  so  I  couldn't  qualify  for  financial 
aid,  and  not  enough  money  to  be  able  to  afford  to  send  me  to 
Stanford,  so  they  really,  they  scraped  for  me  to  be  able  to  go 
there.   I  still  remember  that  my  freshman  year,  the  tuition  was 
$335  a  quarter.  And  by  the  time  I  graduated,  it  had  more  than 
tripled.   So  we  were  paying  tuition  of  like  $1,200  a  quarter  or 
something  like  that.  My  daughter  went  to  Stanford  thirty  years 
later;  I  don't  even  want  to  think  about  what  the  numbers  were 
then.   [laughter]   But  it  was  an  incredible  sacrifice  for  my 
parents,  and  something  for  which  I  wasn't  very  grateful  in  those 
days,  because  I  was  a  typical  immortal  teenager  who  only  thinks 
about  himself.  And  yet,  looking  back  on  it  now,  it's  the  sort  of 
i  thing  that  parents  do,  and  I  didn't  have  an  appreciation  for  it 
until  much  later.   Maybe  I  didn't  have  a  full  appreciation  for  it 
until  I  became  a  parent  and  had  kids  going  to  college  and  all  of 

But  when  you  talk  about  the  people  who  really  have  an 
influence  on  you  as  a  young  person,  obviously,  your  parents  have 
this  enormous  influence.  And  in  my  case,  it  was  a  positive 
influence,  but  it  wasn't  like  some  parents  where  you're  following 
in  the  footsteps  of  your  father  or  your  uncle  or  your  mother  or 
your  aunt,  who  went  off  to  some  college  or  whatever.   That  wasn't 
a  part  of  my  parents'  experience.   My  parents'  experience  was  one 
of  hard  work,  and  commitment  to  trying  to  see  things  better  for 
their  kids,  et  cetera. 

After  my  sister  got  married,  I  guess  to  some  degree  they 
focused  a  lot  of  that  on  me,  and  that's  why  they  were  willing  to 
sacrifice  as  they  did,  so  that  I  could  do  what  I'd  kind  of  set 
out  to  do.   If  I  had  to  do  it  all  over  again,  I  would  have  been  a 
much  more  grateful  son  at  the  time  than  I  was .   I  kind  of 
distanced  myself  from  them.   That  was  a  mistake. 

LaBerge:   I  think  everybody  looks  back  and  sees  that, 
growing  up. 

It's  a  part  of 


Maddow:   I  think  so.   It's  a  part  of  breaking  away  which  we  all  have  to 

do,  but  there  would  have  been  a  more  graceful  way  to  do  it  and  a 
more  thoughtful  way  to  do  it,  and  I  know  that  now.   I  think  my 
own  kids,  I  think  both  of  my  kids  in  their  own  way  did  a  better 
job  of  it  than  I  did,  but  part  of  it  I  think  is  because  they  may 
have  absorbed  a  little  something  from  me  and  Elaine  about  that. 
So  it's  funny,  it's  a  funny  thing. 

Anyway,  now  we've  got  me-- 
LaBerge:   Right.   But  you  didn't  become  an  engineer.   What  happened? 

Maddow:   No.   Well,  you  remember  I  said  I  wasn't  as  good  in  mathematics  as 
I  thought  I  was?  The  differential  equation  became  my  grade 
equalizer.   I  did  not  do  very  well  in  mathematics  when  I  got  to 
Stanford.   I  just--I  really  thought  I  was  cut  out  to  do  the  fast- 
track  stuff  there,  and  if  anything,  I  should  have  enrolled  in  the 
slower  track  of  math  because  the  fast  track  kind  of  ate  me  up  and 
got  me  down  and  all  those  things .  So  my  freshman  year  was  not  a 
very  good  year,  largely  because  I  kept  thinking  to  myself,  I  can 
do  this,  I  can  do  this.  And  I  couldn't.   [laughs]   I  struggled 
with  mathematics  in  my  freshman  year,  and  finally  after  being 
beat  upon  by  an  academic  advisor,  I  realized  that  I  needed  to 
find  something  else  to  do. 

So  what  I  did  instead  was  to,  for  my  sophomore  year,  1  was 
undeclared,  and  at  the  end  of  my  sophomore  year,  I  declared  a 
major  in  political  science.  And  the  reason  that  I  chose 
political  science  was  that  by  that  time,  the  end  of  my  sophomore 
year,  I  had  met  enough  course  requirements  to  graduate  in 
political  science  in  four  years  and  leave  myself  a  lot  of 
opportunity  to  take  classes  in  the  History  Department  and  in  the 
English  Department,  as  well  as  political  science  stuff,  and  also 
to  throw  in  a  couple  of  electives.   Interestingly  enough,  what  I 
threw  in  were  two  geology  classes  and  a  theater  class.   Now,  if 
you  ask  me  to  explain  that,  I  don't  know  that  I  can. 

But  I  declared  political  science  at  the  end  of  my  sophomore 
year.   I'm  glad  that  I  did,  because  it  gave  me  an  opportunity  to 


do  a  lot  of  reading  about  government  and—I've  never  been  as 
interested  in  sort  of  the  politics  side  of  political  science  as 
much  as  I  am  the  government  side,  the  public  policy  side.  And  I 
began  to  get  sort  of  a  grounding  in  that  at  that  time.  I  read  a 
lot  of  John  Stuart  Mill  and  Edmund  Burke. 

LaBerge:  Did  you  have  any  idea  of  going  on  to  law  school  at  that  time,  or 
were  you  just — ? 

Maddow:   I  was  thinking  about  it.   I  began  to  think  about  it  seriously  at 
about  the  time  I  began  to  look  at  the  possibility  of  declaring  a 
major  in  political  science  or  history  or  English.   I  was  pretty 
sure  I  wanted  to  go  on  into  a  graduate  program,  and  the  law 
seemed  a  logical  one,  although  I  really  didn't  have  any  role 
model,  really.  There  was  one  fellow  who  lived  across  the  hall 
from  me  in  a  dormitory  who  to  some  degree  was  a  little  bit  of  a 
mentor.  He  was  a  history  major.  He  was  a  year  ahead  of  me,  and 
he  was  a  real  hyperactive  kind  of  guy,  and  much  more  studious  and 
bookish  than  I  was  in  those  days.  But  he  and  I  talked  a  lot 
about  law  school  as  a  possibility.   He  ended  up  choosing  to  not 
go  to  law  school  and  now,  in  fact,  is  a  dean  at  Stanford. 

LaBerge:   What's  his  name? 

Maddow:   Larry  Horton.  Larry  and  I  talked  about  law  as  a  possibility. 

For  a  short  while  in  my  junior  year,  my  academic  advisor  was 
a  man  named  Allard  Lowenstein,  who  later  became  a  congressman  and 
was  very  much  involved  in  the  antiwar  movement  and  the  civil 
rights  movement. 

LaBerge:   Was  he  a  congressman  from  New  York? 

Maddow:   Yes.  He  was  later  murdered  by  a  guy  who  lived  in  our  dormitory 
and  whose  name  has  just  escaped  me,  a  guy  who  was  involved  with 
the  summer  in  Mississippi — what  was  his  name?   Oh,  golly,  I  just 
can't  think  of  his  name.   A  fellow  who  was  a  year  behind  me  or 
two  years  behind  me,  who  just  cracked  at  some  point  and  ended  up 
killing  Al  Lowenstein. 


Anyway,  Lowenstein--he  had  to  be  an  academic  advisor  because 
everybody  had  those  responsibilities,  they  had  to  go  and  advise 
these  undergraduates .  And  I  don't  think  he  liked  doing  it.   I 
think  what  he  liked  doing  was  organizing  students  to  go  off  and 
do  things,  like  the  summer  in  Mississippi  with  the  voter 
registration  stuff  and  all  of  that,  or  later  all  the  antiwar 
things  that  he  did,  that  sort  of  thing.  That's  what  he  was 
really  good  at.  But  when  he  sat  down  to  talk  to  you  about  your 
academics,  he  expected  you  to  tell  him,  and  he  could  either  say 
yes  or  no. 

Well,  I  had  too  many  questions,  and  I  can  remember  two  or 
three  different  times  going  in  and  talking  to  him  and  feeling  as 
though  he  was  kind  of  harumphing  me,  you  know.   But  actually,  he 
and  I  did  have  conversations  about  law  school  and  what  it  meant 
for  somebody  who  had  no  clearcut  path  ahead  of  him.   He 
recommended  it  to  me  at  least  in  part  because  it  can  be  a  basis 
for  doing  a  lot  of  different  things.  Up  until  I  spoke  to  him,  I 
think  I  viewed  law  as  a  narrower  field  than  perhaps  I  might  have. 
One  of  the  things  I  can  remember  him  talking  to  me  about  was 
people  in  fields  other  than  the  legal  profession  who  were  lawyers 
and  for  whom  the  legal  education  was  a  part  of  their  foundation, 
and  it  wasn't  necessarily—they  weren't  practicing  lawyers.   So 
my  experience  with  him,  even  though  it  was  short,  and  it  was  a 
lot  different  from  a  lot  of  other  people  who  knew  him  at 
Stanford,  my  experience  with  him  was  valuable.   Helped  be  a 
shaper,  I  guess  I'd  say. 

LaBerge:   Was  he  also  one  of  your  professors? 

Maddow:   Let  me  think.   I  think  I  took  like  a  two-unit  class  or  something 
like  that  from  him,  and  I  can't  remember  what  it  was  now.   I 
should  remember  those  things  better  than  I  do.   But  I  really  only 
knew  him  through  this  advisory  role.   I  had  a  ten-week  class  that 
was  some  kind  of  a--it  wasn't  a  senior  colloquium,  it  was  a-- 
something  about  American  political  thought  in  those  days,  but  I 
can't  remember  what  it  was.   1  barely  remember  it,  so  it 
obviously  wasn't  anything  that  really  inspired  me. 


I  actually  took  more  inspiration,  I  think,  about  things  like 
public  service  and  that  sort  of  thing  from  some  of  the  history 
professors  I  had.   Gordon  Craig  was  this  wonderful  professor  of 
European  history,  and  Thomas  Bailey,  and  some  of  these  people  who 
just  made  history  sing.  With  the  modern  history  I  read  about 
World  War  II,  for  example,  and  I  had  done  a  fair  amount  of 
American  history  work,  I  think  I  got  a  bit  of  a  grounding  in  how 
important  history  is. 

One  of  the  reasons  why  I  was  so  interested  in  this  oral 
history  program  is  that  I  believe  that  institutions  like  East  Bay 
MOD,  for  example,  need  to  understand  their  history,  because  the 
role  that  they  play- -and  this  can  be  true  of  so  many  different 
types  of  institutions --the  role  that  they  play  is  so  much  a 
function  of  how  they  got  to  the  position  that  they're  in  in  their 
particular  niche  and  their  particular  segment  of  the  society. 
You  need  to  understand  that  history  to  really  be  able  to 
understand  where  the  institution  is  going  to  go. 

That's  the  part  of  public  policy  that  I  like:  how  do  you 
take  what  you  can  learn  from  your  past  and  use  it  to  help  you 
learn  where  you're  going  in  the  future?   People  like  Jack  Reilley 
and  Harold  Raines  and  Walter  McLean  and  people  from  their  era  can 
really  provide  sort  of  a  polestar,  and  I  hope  I  can  maybe 
contribute  some  of  that  too. 

Hastines  College  of  the  Law.  1964-1967 

LaBerge:   Where  else  did  you  apply  to  law  school? 

Maddow:   Boalt  Hall.   You  know,  I  think  I  applied  to  Harvard.   I  don't 
know  why,  but  I  think  I  applied  there. 

LaBerge:   Well,  your  aiming  high  at  Stanford,  you  might  as  well-- 


Maddow:   My  grade  point  at  Stanford  was  a  little  under  3.0  when  I 

graduated,  so  I  didn't  have  much  chance  of  getting  into  Harvard. 
Hastings  in  those  days--I  don't  know  how  Hastings'  admissions  are 
right  now;  I  don't  think  they've  changed  all  that  much.  But 
Hastings  College  of  the  Law  would  take  many  more  students.  They 
would  take  a  chance  on  many  more  students  than  some  of  the  other 
law  schools.  But  half  the  people  didn't  survive  the  first  year. 
And  so  by  the  time  I  was  applying  to  law  school,  I  had  managed  to 
muck  up  my  college  transcript  enough  by  staying  in  mathematics 
too  long  and  kind  of  not  knowing  where  I  was  really  headed  so 
that  I  wasn't  going  to  be  able  to  qualify  academically  for  places 
like  Harvard  Law  School  and  Boalt  Hall- -oh,  Stanford  Law  School, 
I  applied  to  Stanford  also.   I  think  I  actually  made  a  waiting 
list  there. 

But  Hastings  was  a  place  that  I  thought  would  be  a  good 
place  for  me,  because  I  loved  San  Francisco  by  that  time,  and  it 
was  right  downtown.   It  was  a  very  challenging  place,  and  I  knew 
I  needed  that.   I  knew  I  needed  that  structure.   The  threat  of 
half  the  people  flunking  out  was  enough  to  provide  me  the 
motivation  I  thought  I  needed.   So  I  was  really  pleased  to  be 
able  to  go  to  Hastings. 

Looking  back  on  it  now,  if  I  had  to  do  it  all  over  again 
knowing  what  I  know  now,  I  would  have  gone  to  Hastings,  but  I 
would  have  gone  at  it  a  little  differently.   I  wasn't  quite  sure 
where  in  the  law  I  wanted  to  head,  and  one  of  the  reasons  why  I 
had  that  uncertainty  was  that  so  did  everybody  in  our  class, 
which  was  almost  all  men;  there  were  almost  no  women  in  our 
class.   I  remember  it  was  something  like  four  or  six  or  something 
like  that  out  of  several  hundred  graduated.  Now  I  think  it's  52 
percent  women  or  something  like  that.  But  this  was  the  era  of 
Vietnam,  and  I  was  in  the  last  year,  next  to  last  year  of  the 
student  deferment  that  would  keep  you  from  being  drafted  out  of 
school,  and  we  just  had  that  hanging  over  our  heads.   So  it  was 
hard  to  focus  on  what  I  wanted  to  do  with  the  law  when  I  was  so 
sure  that  as  soon  as  I  finished  with  law  school,  either  because  I 
flunked  our  or  dropped  out  or  graduated,  I  was  going  to  have  to 
do  something  that  was  going  to  involve  the  military.   I  just  knew 


it.   It  was  either  going  to  have  to  be  military  or  an  alternative 
to  the  military. 

I  applied  to  the  FBI,  I  applied  to  the  coast  guard,  every 
reserve  .program  that  came  along.  Two  of  my  roommates  and  I 
stayed  up  all  night  at  Hamilton  Field  trying  to  get  into  the 
small  number  of  people  who  got  accepted  into  a  national  guard  or 
an  air  force  reserve  unit  or  something  that  was  up  there.   I 
think  there  were  a  couple  hundred  men  who  stayed  up  all  night  out 
there,  trying  to  get  their  name  on  this  list.  So  I  wasn't  really 
thinking  about,  What  am  I  going  to  do  after  law  school?  I  was 
thinking- -other  than  with  the  military.   I  wasn't  thinking  about 
what  kind  of  law  I  was  going  to  practice  or  anything  like  that, 
because  Vietnam  was  just  this  incredible  brooding  presence  for 
all  of  us. 

So  when  I  finished  law  school,  I  knew  I  was  headed  for  the 
military.   I  actually  had  been  accepted  to  officer  training 
school  while  I  was  studying  for  the  bar- -actually,  before  I 
graduated,  I  guess,  and  then  studied  for  the  bar.   Took  the  bar 
in  August,  and  went  off  to  the  air  force  at  the  end  of  September. 
Found  out  while  I  was  in  officer  training  school  that  I  passed 
the  bar.   So  everything  kind  of  ran  together  there. 

Jobs  During  Student  Years 

LaBerge:   I  forgot  to  ask  you,  and  I  didn't  ask  you  on  the  first  outline: 
did  you  have  summer  jobs,  or  did  you  work  on  campus? 

Maddow:   I  did  a  number  of  different  things.   In  high  school,  I  really 
didn't  have  much  other  than  sort  of  odd  jobs.   I  mentioned  Ed 
Seipel.  Ed  had  a  friend  who  had  a  construction  company,  and  he 
used  to  hire  Ed's  son  Jimmy  and  our  other  friend  Phil  and  me  to 
do  odd  jobs.   For  example — 


LaBerge:  Okay,  he  was  a  plumbing  and  heating  contractor. 

Maddow:   And  one  year,  he  foreclosed  on  a  mechanic's  lien  and  ended  up 

owning  an  ice  skating  rink  that  was  in  fairly  decrepit  shape.  He 
hired  me  and  Jimmy  Seipel  and  Phil  Crabtree  to  go  in  and  redo  not 
the  plumbing  and  heating  part  of  it,  because  he'd  already  done 
that,  but  for  example,  the  r,ail  around  the  ice  skating  rink  that 
gets  all  torn  up  from  ice  skates  and  all  that,  and  the  rubber 
tile  in  the  areas  where  people  change.  We  redid  the  whole  inside 
of  the  place,  and  then  one  day  he  came  in  with  a  paint  sprayer 
and  said,  "Any  of  you  know  how  to  use  a  paint  sprayer?"   I  said, 
"Yes,  I  think  I  do."  And  he  tested  me  out  and  figured  out  that 
we  knew  how  to  paint  well  enough,  so  he  let  us  paint  the  inside 
of  this  ugly  old  ice  skating  rink.  We  did  things  like  that. 

Then  when  I  was  in  college,  I  alternatively  went  to  summer 
school  or  worked  at  sort  of  odd  different  kinds  of  jobs.  One 
summer  I  worked  for  the  Los  Angeles  Flood  Control  District,  I. 
guess  it  was,  L.A.  County  Flood  Control  District,  working  on  just 
physical  work,  construction-type  work,  and  clearing  rights  of  way 
and  things  like  that,  pouring  a  little  concrete,  digging  lots  of 
things,  hoeing  weeds --you  name  it,  if  it  was  physical  labor,  we 
did  it. 

One  summer  I  went  to  summer  school  and  also  worked  in  a 
theatre  which  was  a  theatre  in  the  round,  a  place  called  Circle 
Arts  in  San  Diego.   It  was  the  same  sort  of  thing  as  Circle  Star 
up  here.   They  did  these  Broadway  musicals  in  the  round,  and  I 
worked  as  an  usher,  and  occasionally  they'd  have  us  help  with 
carrying  props,  although  not  much  of  that,  or  building  things  or 
whatever,  and  I  loved  that.  It  was  really  fun;  I  thoroughly 
enjoyed  that  theater  job. 

One  summer,  I  think  when  I  was  in  law  school,  just  before 
the  finals  in  my  second  year,  I  came  down  with  mononucleosis,  and 
I  was  really  wiped  out.   I  was  able  to  take  all  but  one  of  my 
finals,  but  that  summer,  I  was  not  in  very  good  shape  for  the 
beginning  of  the  summer.   But  towards  the  end  of  the  summer, 
actually  like  the  last  couple  of  months ,  I  went  to  some  temporary 


agency  or  something.  The  first  job  they  sent  me  out  on  was  to 
load  hundred-pound  sacks  of  rice  in  a  truck,  and  here  I  was  a 
skinny  little  kid  who'd  just  had  mono;  that  didn't  work  too  well. 
Fortunately,  there  was  another  guy,  and  the  two  of  us  did  that. 

But  then  the  next  day,  they  sent  me  out  to  this—actually, 
in  these  days  it  was  called  General  Atomics.   It  was  another  part 
of  the  General  Dynamics  family.  And  they  had  what  they  called  a 
high  explosives  testing  facility,  HEX.  General  Atomics,  among 
other  things,  I  think,  built  something  that  had  to  do  with 
nuclear  weapons — I  mean,  because  General  Dynamics,  Conyair 
Astronautics  and  whatever  all  the  companies  were  called,  they 
built  intercontinental  ballistic  missiles.  And  this  one  part  of 
the  company,  I  think,  did  something  with  regard  to  the  fuses  or 
something,  and  they  blew  things  up.  They  had  these  weird  cameras 
where  they  could  take  an  enormous  number  of  frames  of  film  in  the 
fraction  of  a  second  between  the  time  when  the  fuse  would  ignite 
the  explosive.   I  never  knew  what  it  all  was,  but  it  was  some 
kind  of  fancy  testing  stuff. 

Well,  they  needed  people  to  do  sort  of  odd  jobs.  They  were 
out  in  the  middle  of  this  almost  like  a  desert  east  of  San  Diego. 
When  they  would  blow  stuff  up,  hot  pieces  of  metal  would  fly 
around  and  start  little  fires.   I  was  the  guy  who  built  the  racks 
for  the  backpacks  that  held,  I  don't  know,  twenty  gallons  of 
water  or  something  with  a  little  nozzle  on  them  that  the  crews 
would  run  around  and  put  out  the  fires  with.  I  built  racks  so 
that  they  could  put  one  of  those  on  either  side  of  all  the  pickup 
trucks.   I  had  never  done  anything  like  that  before,  but  they 
just  said,  "Can  you  run  a  band  saw  and  do  this?"  I  said,  "Sure." 
It  was  just  crazy  stuff. 

One  day  we  went  out,  and  we  were  the  first  people  to  arrive 
at  the  scene  of  a  navy  jet  that  had  crashed.  This  was  very  close 
to  the  landing  pattern  for  the  Miramar  Naval  Air  Station,  which 
is  where  the  navy  had  what  later  became  known  as  the  Top  Gun 
school.   I  remember  hearing  this  horrible  noise  one  day,  and  it 
was  an  airplane  crash.   I  didn't  actually  get  all  that  close  to 


it,  but  some  of  the  other  people  did. 
of  an  oddball  job. 

So  that  was  another  kind 

When  I  was  in  law  school,  I  worked  in  a  couple  of  odd  jobs. 
I  worked  in  a  printing  place,  where  I  did  everything  from 
sweeping  the  floors  to  taking  this  weird  paint  and  painting  out 
the  clear  spots  in  negatives  of  these  engineering  prints  that 
they  were  doing  through  some  photographic  process.  Picked  up  a 
couple  of  little  research  jobs  here  and  there  in  law  firms,  but 
nothing  that  really  was  going  to  lead  me  anyplace,  because  I 
wasn't  like  a  lot  of  the  people  who  were  out  there  really  busting 
their  backside  trying  to  land  a  job  in  a  law  firm,  because  I  knew 
I  was  going  in  the  military.  There  wasn't  any  two  ways  about  it. 
My  student  deferment  had  kept  me  out  of  the  military  for  quite  a 
while,  and  I  knew  it  wasn't  going  to  last  forever. 

So  I  ended  up  in  the  air  force. 

Social  Life  in  College 

LaBerge:  What  about  student  life  in  college?  What  else  did  you  do  besides 
take  your  poli  sci  classes  and — ? 

Maddow:   Well,  I  was  pretty  much  a  nerd,  I  think.   [laughter]   I  lived  in 
dorms.   I  had  the  opportunity  to  pledge  a  couple  of  fraternities, 
but  I  wasn't  all  that  interested.   If  one  of  the  fraternities 
with  all  the  basketball  players  or  something  had  asked  me  to 
pledge  there,  I  might  have  been  interested,  but  they  weren't 
interested  in  me,  I'm  sure,  so  I  knew  that  was  the  case.   But 
there  were  things  about  fraternity  life  that  didn't  appeal  to  me. 
It  was  a  little  too  raucous  and  I  knew  it  was  going  to  be  too 
expensive.   I  lived  in  dormitories  just  about  the  whole  time. 
Roomed  with  one  fellow  who  later  became  an  engineer  for  an 
automotive  company.  We  roomed  together  for  most  of  three  years. 
Right  across  the  hall  from  us  for  those  three  years  were  two 
guys,  one  of  whom  was  the  one  and  only  basketball  player  who 


wasn ' t  in  a  fraternity .  Actually ,  I  had  known  him  all  through 
high  school,  because  his  father  was  one  of  the  inspirational 
people  whom  I  should  have  mentioned  before.  He  was  a  vice 
principal  of  my  high  school,  and  this  fellow  and  his  brother  both 
went  to  Stanford  and  both  went  on  to  do  good  things. 

But  his  name,  I  should  tell  you,  was  Mr.  Raaka  [spells].  He 
was  a  vice  principal  and  was  a  guy  who  was  really  somebody  that 
the  people  who  were  the  leaders  of  the  student  body  looked  up  to. 
He's  the  person  who  told  me,  "Apply  to  a  place  that's  your  ideal, 
and  one  in  the  middle-,-  and  one  that — "  it  wasn't  Mr.  Stout;  it 
was  Mr.  Raaka. 

Mr.  Raaka 's  son  Clayton  was  in  my  class,  lived  right  across 
the  hall  from  me  in  this  dormitory  for  three  years,  was  a  starter 
on  the  basketball  team  for  two  or  maybe  all  three  of  those  years, 
was  a  complete  flake,  and  was  a  wonderful  guy.   I've  completely 
lost  touch  with  him,  but  he  was  Larry  Horton's  roommate.   Clayton 
was  about  six-foot-five  and  Larry  was  about  five-foot-six,  and 
I'm  about  six- two,  and  my  roommate,  Stu  Westcott,  was  about  five- 
foot-six.  Wherever  we  went,  people  always  used  to  talk  about 
"the  long  and  the  short  of  it."   [laughter] 

I  became  involved  in  some  campus  activities .   In  some  of  the 
things  around  sort  of  dormitory  life  and  that  sort  of  thing,  I 
got  involved  in  doing  things,  but  I  wasn't  president  of  this  or 
that  in  those  days,  I  was  more  a  worker  bee.   I  served  on  a 
couple  of  campus-wide  committees  and  things  like  that,  but  not 
anything  that  was  any  great  shakes.   I  remember  in  my  last  two 
years,  I  was  on  something  called  the  Campus  Overnight  Committee, 
and  looking  back  on  it  now,  I  wonder  how  we  even  existed.   In 
those  days,  for  all  the  living  groups,  the  big  social  events  of 
the  year  would  involve  overnights .   God,  there  must  have  been — I 
mean,  overnight--!  look  back  on  it  now,  and  it  was  probably  in 
those  days,  when  we  had  the  men's  dormitories  on  one  side  of  the 
street  and  the  women's  on  the  other,  that  was  probably  as  close 
as  you  came  to  sort  of  sanctioned  sexual  escapades  or  some  such 
thing,  I  don't  know.  But  we  actually  were  students  who  were 
given  the  responsibility  of  checking  to  make  sure  that  the  places 


people  were  going  for  overnights  were  okay,  that  there  were  rooms 
for  the  women  over  here  and  for  the  men  over  here,  and  God  only 
knows  whatever  would  happen  there.  I  look  back  on  that  now  and  I 
say,  "What  were  we  doing?"  But  this  was  in  the  early  sixties, 
before  all  the  revolutions  of  the  later  sixties,  and  so  I  guess 
maybe  it  made  sense  in  that  context. 

LaBerge:  Well,  I  was  in  school  in  the  later  sixties,  and  I  can  relate  to 
all  of  this,   [laughter] 

Maddow:   That's  funny.   But  I  became- -after  I  kind  of  went  through  the  bad 
experience  of  thinking  I  was  going  to  be  an  engineer,  I  was  never 
a  real  bookworm,  but  I  was  kind  of  sopping  up  all  there  was  to 
sop  up  at  Stanford.   I  went  to  a  lot  of  everything.  I  went  to  a 
lot  of  sports  events,  I  went  to  a  lot  of  cultural  events,  I  went 
to  a  lot  of  the  movies  that  were  shown  on  campus  on  Sunday  night, 
I  liked  to  go  to  those.   I  liked  to  go  to  the  various  theatrical 
and  music  things — not  all  the  musical  things.   In  those  days,  I 
didn't  like  the  opera.   Now  I  love  the  opera.   I  went  to  the 
opera  when  I  was  there  a  couple  of  times,  but  you  know,  it  just 
wasn't  exactly  my  cup  of  tea. 

I  guess  it  was  when  I  was  at  Stanford  that  I  became  a 
devourer  of  newspapers,  which  I  still  am.   Stuart  was  from  New 
Jersey,  my  roommate  Stuart,  and  he  subscribed  to  the  New  York 
Times  Western  Edition  when  it  was  first  published.  The  two 
fellows  in  the  room  next  to  us  that  year  were  Joe  Jacobs  and  Pete 
King,  who  were  both  involved  with  the  campus  newspaper.  We  kind 
of  just  fed  off  one  another's  thirst  for  what  was  going  on 
through  the  press.  As  a  matter  of  fact,  there  were  times  when  I 
thought  if  I  didn't  go  to  law  school,  I  might  try  and  take  my 
chances  in  journalism,  because  I  was  so  interested  by  it. 

Pete  King  was  the  sports  editor  of  the  Stanford  Daily,  and 
through  Pete,  I  used  to  sometimes  get  to  go  with  him  when  he 
would  interview  the  star  of  the  other  football  team  that  Stanford 
was  playing,  or  those  kinds  of  things.   I  enjoyed  those  kinds  of 
things.  We'd  be  up  in  the  press  box  and  Pete  would  be  doing  his 

LaBerge : 


reporter's  thing,  and  I'd  be  his  spotter,  things  like  that, 
did  a  lot  of  things,  a  lot  of  things  like  that. 

So  I 

I  didn't  own  a  car,  and  so  I  found  myself  not  able  to  get 
out  and  see  as  much  as  I  would  have  liked,  but  I  used  to  find 
myself  always  looking  for  ways  in  which  to  go  places  and  see 
things  around  the  Bay  Area.  That's  when  I  formed  the  attachment 
that  stays  with  me  today.   It  would  be  really  hard  for  me  to  live 
anyplace  else,  except  maybe  Lake  Tahoe  or  something.  Does  that 

Vietnam's  Impact;  Nationally.  Locally,  and  Personally 

Oh,  yes,  it's  great.  Do  you  want  to  say  more  about  either 
Vietnam  or  just  that  kind  of  atmosphere  that  was  over  everybody, 
your  friends  and  the  campus -- 

Maddow:   Well,  it  was. 

LaBerge:   It's  something  that  younger  people  today  wouldn't  understand  if 
they  haven't  lived  through  it. 

Maddow:   I  won't  say  a  whole  lot  about  it,  but  I  will  say  a  couple  of 
things . 

Perhaps  the  event  that  more  than  any  other  single  event 
about  Vietnam  sticks  in  my  memory  has  to  do  with  someone  I  just 
mentioned,  Joe  Jacobs.   Joe  was  a  year  behind  me  at  Stanford.   He 
had  a  twin  brother,  a  fraternal  twin.   His  brother's  name  was 
Carl.  Carl  went  to  Berkeley  and  Joe  went  to  Stanford.  And  Joe 
really  wanted  to  be  a  theatrical  producer.   His  whole  life  was 
pointed  in  that  direction.   Joe  got  drafted,  and  when  he  got  over 
there,  his  commanding  officer  saw  that  in  every  waking  moment, 
Joe  was  writing  letters.  And  he  read  some  stuff  that  Joe  had 
written,  and  he  wangled  an  assignment  for  Joe  as  a  combat 


correspondent  for  Stars  and  Stripes.  They  would  actually  go  into 
combat,  sort  of  right  behind  the  front-line  troops. 

And  one  day,  Joe  got  caught  up  in  a  firefight  and  lost  his 
glasses,  and  was  slightly  wounded,  I  think.   I've  forgotten  the 
details  of  that.  But  anyway,  they  sent  him  back  in  a  Jeep  that 
was  taking  some  people  back  to  a  rear  area,  and  as  I  recall,  the 
Jeep  hit  a  mine  and  then  came  under  fire,  and  Joe  was  killed. 

And  the  reason  I  know  about  it  is  that  Time  magazine  did  one 
of  its  little  vignettes  for  that  week  about  the  war  about  Joe, 
and  about  these  letters  that  he  wrote,  and  a  particular  letter 
that  he  wrote  to  Carl.  And  that  hit  me  really  hard.   I  remember 
reading  it--I  think  that  was  in  late  '66  or  early  '67.  It  just 
tore  at  me,  because  Joe  was  somebody  I  had  known  well.  First 
time  I  went  back  to  Washington  after  the  [Vietnam]  Wall  [was 
built],  that  was  the  first  name  I  went  to  find.  That's  just 
really  stuck  with  me.  And  I  knew  several  other  guys  who  were 
killed  over  there  also,  but  none  of  them  affected  me  quite  the 
way  Joe  did. 

The  other  thing  was  that  when  I  was  in  law  school  my  last 
two  years,  I  lived  in  the  Haight-Ashbury  District.   We  lived  up 
near  Buena  Vista  Park  in  San  Francisco  in  this  old  house  on  Buena 
Vista  Terrace,  and  we  jokingly  called  it  the  BVTAC,  the  Buena 
Vista  Terrace  Athletic  Club.   It  was  a  wonderful  old  house  that 
had  been  built  in  like  1903,  and  it  was  owned  by  a  woman  named 
Mrs.  Sipes,  who  was  I  think  a  quarter  American  Indian.   She  and 
her  husband  had  owned  this  house,  and  he  passed  away,  and  she 
owned  it  all  by  herself  now,  and  she  had  these  generations  of  law 
students  upstairs.   What  a  fool!   [laughter] 

But  some  interesting  people.   John  Herrington,  who  is  now 
the  chairman  of  the  state  Republican  party,  was  there.   He  was  at 
that  time  engaged  to  Lois  Haight,  who  is  now  a  judge  out  in 
Contra  Costa  County.  Guy  Rounsaville  who's  the  general  counsel 
of  Wells  Fargo  Bank,  and  Bruce  Patterson,  who's  an  assistant 
district  attorney  of  Orange  County,  and  Chick  Hastings,  who's  now 
the  county  attorney,  been  the  county  attorney  of  Yavapai  County 


in  Arizona  for  twenty  years, 
that  went  through  there. 

So  we  had  a  bunch  of  good  people 

And  in  '66  and  '67,  we  were  close  enough  to  the  Haight- 
Ashbury  as  it  was  really  getting  roaring,  so  that  we  were  able  to 
observe  everything  that  was  going  on  down  there.  And  of  course, 
a  lot  of  what  was  going  on  had  a  strong  antiwar  flavor.   I'd  have 
to  say  that  we  were  probably  in  the  group  that  was  a  little  bit 
more  conservative  than- -certainly  the  law  students  were  more 
conservative  than  what  was  going  on  in  the  streets  for  darn  sure, 
but  among  the  law  students,  I  guess  I  would  have  to  say  my 
personal  politics,  if  I  had  any,  were  a  little  on  the 
conservative  side,  looking  back  now.   Because  I  really  didn't 
understand  the  antiwar  stuff  all  that  well.   If  John  Kennedy  and 
Lyndon  Johnson  and  people  like  that  were  getting  us  committed  to 
these  things,  by  golly,  there- -and  I  was  a  lifelong  Democrat  and 
all,  and  my  parents  were,  and  all  this.   I  didn't  really  get  my 
eyes  opened  for  a  little  while. 

I  can  remember  the  day  of  the  first  really  huge  march  in  San 
Francisco.   What's  the  street  just  up  from  McAllister,  is  it 
Golden  Gate?  The  street  right  behind  Hastings  I  think  is  Golden 
Gate  Avenue. 

LaBerge:  I  think  it  is  Golden  Gate. 

Maddow:   And  Channel  7  had  its  offices  right  there.  When  the  students 
marched- -students ;  the  marchers  marched;  they  weren't  just 
students — I  think  it  was  the  first  time  there  were  like  100,000 
people  in  the  streets.   They  went  right  by  Channel  7.   I  remember 
sitting  on  a  car  right  in  front  of  the  Channel  7  watching  these 
people  go  by  for  a  couple  of  hours,  and  I  remember  thinking  to 
myself,  Wow.   What  is  this?   I  remember  thinking,  because  we  used 
to  kind  of  joke  about—these  were  the  early  days  of  hippies  and 
all  that,  and  we  used  to  see  some  of  the  first  of  the  wild 
scenes,  used  to  kind  of  joke  about  it.   After  a  while,  you  began 
to  realize  there  was  more  to  it  than  just  a  few  freaks  and 
weirdoes ,  which  is  probably  what  we  were  thinking  at  the 
beginning,  because  as  I  say,  my  friends  and  I  were  more 


interested  in  sports  and  staying  in  school  than  we  were  in 
politics,  I  guess  I'd  say.  But  it  began  to  sink  in  after  a 
while,  and  we  began  to  realize  there  was  something  going  on  that 
was  kind  of  tearing  at  the  heart  of  the  young  people  in 
particular,  but  eventually  we  began  to  realize  it  was  a  lot  more 
than  that. 

When  John  Kennedy  [1963]  was  killed,  it  was  the  fall  of  my 
senior  year.   I  remember  being  one  of  the  young  people  who  was 
just  totally  devastated  by  that.  And  I  remember  sort  of  the 
first  real  political  awakenings  for  me  were  watching  what 
happened  as  Lyndon  Johnson  became  president.   I  knew  enough  about 
political  science  and  government  at  that  time  to  understand  that 
Johnson  had  an  incredible  opportunity  to  do  something.   It  was 
largely  because  he  was  in  the  period  right  after  President 
Kennedy  was  killed  and  the  nation  was  looking  for  someone  to 
serve  as  a  leader,  but  the  thing  that  I  learned  through  studying 
some  political  science  from  a  Professor  Watkins  in  particular  and 
a  man  named  John  Bunzel  was  that  somebody  like  Lyndon  Johnson  was 
probably  ideally  situated  right  then,  because  he  knew  how  to  get 
legislation  through  the  Senate. 

So  here  I  was,  just  out  of  poli  sci  education  at  Stanford, 
and  I  was  able  to  watch  the  Civil  Rights  Act  and  all  the  things 
that  happened  in  '64,  '65,  through  legislation.  And  then  I 
watched  as  Lyndon  Johnson's  presidency  fell  apart,  because  of  the 
war,  and  because  the  consummate  politician  had  feet  of  clay. 

All  that  was  going  on  at  the  same  time  that  I  guess  I  was 
watching  the  kids  in  the  street,  and  it  began  to  kind  of — it  all 
began  to  kind  of  reshape  me  in  terms  of  my  own  thoughts  about 
politics  and  life  in  general.   I  guess  I  never  became  a  radical. 
I  guess  I  never  became  even  a  real — I've  always  thought  of  myself 
as  being  sort  of  on  the  liberal  side  of  politics,  but  I  also 
understand  that  when  you're  twenty—someone  said,  it  may  have 
been  one  of  the  English  or  French  political  philosophers  who 
said,  "If  at  twenty  you're  not  a  liberal,  you  have  no  heart;  if 
at  forty  you're  not  a  conservative,  you  have  no  head."  Well,  I'm 
a  part  of  that,  and  I  understand  all  that.   But  I  think  since 


that  awakening  in  the  mid-sixties,  it  was  so  driven  by  Vietnam,  I 
think  I  intended  to  be  a  person  who  tends  far  more  towards  the 
liberal  side  of  political  thinking,  and  questioning,  and  turning 
away  from  some  of  the  things  that  were  happening  and  have 
happened  on  the  political  right. 

But  through  it  all,  I  always  find  myself  going  back  to  the 
policy  issues  as  opposed  to  the  political  issues.  What's  the 
policy  that  we're  following?  What's  the  policy  that's  at  the 
heart  of  what  we're  doing?  What's  our  mission,  what  are  our 
objectives?  And  for  Vietnam,  for  me,  I  never  figured  out  what 
our  objectives  were  after  I  began  to  think  about  it. 

U.S.  Air  Force.  1967-1972 

Maddow:   That  became  particularly  true  when  I  got  in  the  air  force  and  I 

was  supposed  to  learn  about  these  things,  and  it  was  really  hard. 
But  I  ended  up  with  work  assignments  in  the  air  force  that  were 
about  as  far  removed  from  Vietnam  as  you  could  be  and  still  be  in 
the  military,  because  I  worked  in  the  space  and  missiles  program. 
And  that  didn't  have  anything  to  do  with  Vietnam. 

LaBerge:   Had  you  requested  that,  or--? 

Maddow:   No.   Oh,  absolutely  not.   It  was  a  really  strange  thing.   I  was 
in  officer  training  school  in  November  and  then  early  December, 
and  there  were  eighteen  of  us  in  our  flight.   Sixteen  of  the 
eighteen  already  had  their  assignments,  and  I  still  didn't  have 
one.   My  roommate  and  another  guy  and  I  kind  of  hung  around 
together.   We  were  always  joking  about  how  the  last  one  was  going 
to  get  the  worst  one,  you  know.   Then  one  day,  I  get  this  call 
saying,  "Your  assignment's  in,"  and  I  went  down  and  looked  at  the 
orders,  and  it  talked  about  something  I'd  never  heard  of.   I  was 
assigned  to  the  headquarters  of  the  Space  and  Missile  Systems 
Organization,  known  as  SAMSO,  just  south  of  the  L.A.  airport.   It 
was  at  Los  Angeles  Air  Force  Station  on  El  Segundo  Boulevard. 


The  reason  I  got  that  assignment  was  that  there  was  a 
colonel  named  Don  Nunn,  who  was  like  the  number  two  executive  in 
this  organization,  and  I'll  talk  some  more  about  that  in  a 
minute.  And  he  wanted,  as  he  put  it,  a  couple  of  bright  young 
lieutenants  for  some  real  special  assignments,  and  he  picked  me 
because  of  my  education.  Now,  I  had  been  selected  to  go  to 
something  called  Procurement  Management  Staff  Officers  School. 
They  did  that  with  a  lot  of  people  who  had  law  degrees.   There 
were  about  300  or  400  people  who  went  into  the  air  force  in  ' 67 
and  early  '68  who  had  law  degrees,  but  they  didn't  have  legal 
billets  for  them.  All  the  JAG  slots,  judge  advocate  general,  all 
the  JAG  corps  slots  were  full. 

And  so  they  were  looking  for  other  things  for  us  to  do,  and 
so  they  started  to  push  a  lot  of  us  towards  contract  work,  and 
that's  procurement  management  work.  You  go  to  this  school  up  in 
Colorado  where  they  teach  you  how  to  write  an  air  force  contract, 
and  administer  an  air  force  contract,  and  all  this  stuff,  how  to 
buy  widgets . 

Well,  the  lawyers  generally  got  the  assignments  to  the 
material  acquisition  commands.   Like  my  old  roommate,  Chick 
Hastings,  he  went  up  to  Electronics  Systems  Division  up  in 
Boston,  and  I  got  sent  to  SAMSO,  and  my  friend  Russ  Allen  got 
sent  to  SAMSO.   We  all  went  to  the  places  where  the  contracts 
were  more  complicated  and  the  issues  were  a  little  bit  more 
esoteric,  and  they  could  use  our  law  degree. 

Well,  when  I  showed  up  there,  I  got  assigned  to  work  in  the 
office  that  wrote  and  administered  the  annual  contract  with  an 
air  force-sponsored  think  tank  called  the  Aerospace  Corporation. 
Now,  the  model  for  Aerospace  was  the  Rand  Corporation,  which  was 
the  first  of  this  sort  of  government-sponsored  defense-oriented 
think  tank,  only  Aerospace  had  a  much  more  clearly  defined 
mission.   Rand  was  for  strategic  thinking  and  that  kind  of  thing, 
and  policy  analysis.   Aerospace  was,  to  use  the  jargon  of  those 
days ,  the  general  systems  engineer  and  technical  director  of  the 
entire  air  force  missiles  and  space  program,  with  the  exception 
of  the  part  that  dealt  with  warheads .   That  work  was  done  by  TRW 


Corporation.  They  were  like  the  architects  of  missiles  and  space 
program.  Aerospace  had  a  unique  contract  that  got  special 
congressional  attention  every  year,  and  my  job  was  to  work  on 
some  aspects  of  preparation  for  the  congressional  presentations, 
some  aspects  of  the  contract  writing,  with  a  particular  emphasis 
on  certain  legal  issues  and  on  certain  of  sort  of  the 
congressional  issues  where  there  was  always  going  to  be  a  lot  of 
congressional  oversight,  and  then  certain  aspects  of  the  contract 

For  most  of  the  time  that  I  was  in  that  office,  I  was  the 
only  military  guy.   All  the  other  people  were  federal  civil 
servants .   They  reported  to  a  man  who  was  a  very  high-level  civil 
servant  named  Mr.  Reiser,  Morris  Reiser.   And  here  I  was,  a 
second  lieutenant,  and  I  reported  directly  to  Mr.  Reiser's  boss, 
Colonel  Nunn.   And  boy,  was  that  ever  a  strange  situation. 

Colonel  Nunn1 s  Influence 

LaBerge:   Did  you  know  Colonel  Nunn  before  this? 

Maddow:    I  had  never  met  him. 

LaBerge:   Okay,  he  had  just  picked  you  out  from  your  resume? 

Maddow:    Colonel  Nunn  had  been  a  real  what  they  call  fast  burner  in  World 
War  II.   He  was  not  a  combat  guy.   He  was  a  military  logistics 
guy  and  did  a  lot  of  work  in  the  Pentagon  and  at  the  very  highest 
echelons  of  first  the  army  air  corps  and  later  the  air  force, 
sort  of  the  inner  workings.  And  then  he  got  out,  and  he  was  a 
very  successful  businessman  in  Connecticut,  I  think.   He  got 
ordered  back  to  active  duty  in  Korea.   The  stress  of  his  business 
career  had  screwed  up  his  family  life  enough  so  that  he  knew  he 
didn't  like  that  so  much,  and  so  he  salvaged  his  family  by  going 
back  in  the  air  force,  and  stayed  in,  and  ended  up  retiring  as  a 
two-star  general,  I  think. 


When  I  knew  him,  he  was  the  third  ranking  person  in  SAMSO. 
The  first  ranking  person  was  Jack  O'Neill,  who  was  somehow 
related  to  [former  Speaker  of  the  House  Thomas]  Tip  O'Neill,  but 
who  looked  like  the  classic  air  force  general.  He  was  a  handsome 
man.  He  had  been  a  fighter  pilot,  he  had  done  all  of  the — he  was 
dashing,  is  what — 


Maddow:    --because  O'Neill  wanted  to  work  on  the  high-end  technical  stuff 
and  the  interactions  with  the  Pentagon  and  all  that.   And  O'Neill 
used  as  the  guy  he  really  relied  upon,  he  used  Colonel  Nunn.   So 
Colonel  Nunn  was  kind  of  the  number-two  businessman  in  that 
organization,  and  he  really  took  a  shine  to  me.  He  relied  a  lot 
on  my  being  willing  to  work  very  hard  at  things  that  I  didn't 
always  understand.  He  knew  that  if  he  gave  me  a  mission,  I  would 
accomplish  it.   If  I  screwed  it  up,  I  could  go  to  him  and  tell 
him  I  had  screwed  it  up,  and  he  wouldn't  beat  me,  he  would 
understand.   He  was  just  a  really  good  boss. 

He  got  me  into  stuff  and  took  me  places  and  had  me  meet 
people  that  I  wouldn't  have  ever  had  exposure  to  otherwise.  When 
we  were  working  on  stuff  with  the  Congress  and  all  of  that,  it 
got  to  be  really  fascinating  stuff.   I  didn't  get  really — I  mean, 
I  wasn't  the  hands-on  person  with  Senator  This  or  Congressman 
That,  the  colonel  was;  but  I  was  the  guy  writing  his  stuff,  and  I 
was  the  guy  preparing  his  charts,  and  I  was  right  behind  him  all 
the  time.   It  was  great  experience. 

LaBerge:   So  you  would  go  to  Washington  with  him? 

Maddow:   Occasionally.   More  often  than  not,  I  would  be  preparing  the 

things  that  he  would  take  to  Washington  with  him,  but  each  of  the 
two  years  I  worked  for  him,  I  made  at  least  one  trip  back  to  the 
Pentagon,  and  it  was  always  in  the  worst  time  of  the  year  when  it 
was  just  stinko.   We  would  either  be  in  the  Pentagon  or  over  at 
Andrews  Air  Force  Base.   It  was  great  experience,  and  I  must 
confess  that  Colonel  Nunn  is  one  of  those  people  who  helped  me 
begin  to  understand  how  the  understanding  of  mission  and  the 


public  policy  issues  and  the  actual  running  of  the  business  kind 
of  fit  together.  He  was  very  good  at  that,  and  I  liked  him  a 
lot.   I  really  liked  him. 


Maddow:   But  the  whole  time  I  was  working  for  him,  I  also  knew  that  I 

would  very  much  like  to  get  into  JAG  [Judge  Advocate  General's 
Corps],  because  I  wanted  to  really  begin  to  use  my  legal 
training.  There  were  actually  several  hundred  of  us  who  were 
working  at  that,  and  eventually,  I've  forgotten  the  number  now- -I 
think  it  may  have  been  a  couple  hundred — were  actually  allowed  to 
transfer  from  their  original  billet,  again  most  of  them 
procurement  management--!  say  "most,"  one  of  the  guys  was 
actually  running  a  prison  [ laughter ]- -but  in  any  event,  most  of 
them  went  from  a  procurement  management -type  billet  over  to  JAG, 
and  most  got  relocated,  but  I  didn't.   I  think  I  may  have  been 
the  only  one  who  ended  up  staying  right  at  the  same  location.   I 
just  went  from  the  Aerospace  building  over  to  the  headquarters  of 
the  SAMSO,  and  I  moved  into  the  Judge  Advocate  General's  Office 
there . 

LaBerge:   So  you  never  went  to  Asia  or  to  Europe,  you  were  stateside  the 
whole  time? 

Maddow:   I  tell  people  that  I  spent  my  Vietnam  service  years  living  on  the 
top  of  a  sand  dune  in  Hermosa  Beach,  and  commuting  to  work  four 
or  five  miles  in  my  Volkswagen  Bug,  half  of  the  time  being  the 
only  military  person  in  the  office  where  I  worked  and  therefore 
being  able  to  get  away  with  having  sideburns  that  were  too  long 
and  all  of  that.   And  then  the  last  two  years,  two  and  a  half 
years,  about,  I  was  in  the  JAG,  and  I  was  in  a  military  law 
office  that  was  really  laid-back.   We  worked  hard,  but  it  was  not 
like  most  military  careers  by  any  means.   There,  my  first  boss 
was  Carroll  Kelley--[ spells]  that's  a  man.   He  was  from  Boston, 
and  had  the  thickest  Boston  accent  you  could  imagine,  and  he 


really  got  along  with  General  O'Neill  who  was  also  from  Boston. 
But  Colonel  Kelley  had  known  me  when  I  was  over  at  the  Aerospace 
building,  because  I  had  done  a  lot  of  work  with  him,  and  he  and  I 
got  along  very  well,  and  I  liked  him  a  great  deal. 

One  of  the  things  that  he  let  me  do  when  I  was  working  for 
him  in  the  JAG  was  he  allowed  me  to  be  the  lawyer  who  spent  the 
most  time  with  our  cadre  of  reserve  air  force  lawyers.   They  were 
an  incredible  group.   One  was  Evelle  Younger,  who  at  the  time  was 
district  attorney  of  Los  Angeles  County  and  later  became  the 
attorney  general  of  California.   Another  one  was  a  man  named  Buck 
Compton.  Compton  was  the  man  who  prosecuted  Sirhan  Sirhan. 

LaBerge:   Okay,  I  knew  that  name  was  familiar. 

Maddow:   And  later  was  appointed  to  the  court  of  appeal,  and  after  Colonel 
Kelley  retired,  Buck  Compton  hired  him  to  be  one  of  his  research 
attorneys,  because  they'd  gotten  to  know  each  other  through  the 
military  assignments,  and  Compton  really  formed  a  healthy  respect 
for  Kelley,  who  was  a  full  colonel,  old-style  air  force,  shock  of 
white  hair,  actually  had  his  wings  and  all  that  stuff,  but  he  was 
a  lawyer's  lawyer.  Just  a  wonderful  lawyer. 

So  we  had  a  good  office  in  that  respect,  but  then  when 
Colonel  Kelley  retired,  we  got  in  a  guy  named  Colonel  Chet 
Taylor,  who  had  just  come  back  from  the  Philippines,  and  he  was 
more  a  military  man's  lawyer  than  a  lawyer's  lawyer.   He  set  his 
cap  for  convincing  me  to  become  a  career  military  lawyer,  and 
told  me  he  was  going  to  make  sure  that  the  assignments  I  would 
get  would  be  good  ones.  The  first  assignment  that  came  through 
for  me  looked  like  it  was  going  to  be  in  Guam,  and  it  was  going 
to  be  unaccompanied  for  fifteen  months,  I  think,  or  eighteen 
months,  I've  forgotten  which  it  was.  Well,  I  had  a  young  son, 
and  I  didn't  want  to  do  that.   So  then  he  said,  "Oh,  don't  worry 
about  it,  I  can  get  that  changed  and  we'll  get  you  sent  to  Clark 
Air  Base  in  the  Philippines."  Well,  I  didn't  want  to  go  to  Clark 


It  was  funny,  because  Colonel  Taylor  and  his  wife,  whose 
name  was  Rita,  invited  me  and  actually,  several  of  the  other 
young  captains  over  one  time  to  have  dinner  and  to  look  at  their 
pictures  of  Clark.   It  was  because  one  of  the  other  captains  had 
just  been  assigned  there,  and  Colonel  Taylor  wanted  me  to  go 
there.  The  other  guy,  he'd  already  made  up  his  mind.  He 
actually  did  end  up  staying  and  making  the  air  force  a  career, 
but  that's  what  convinced  me  more  than  ever  that  I  was  getting 
out.   [laughs]   I  was  not  intrigued  with  the  thought  of  going  to 
the  Philippines.   The  things  that  he  and  his  wife  found  really 
exciting  about  Clark  and  the  Philippines  were  things  that  didn't 
appeal  to  me. 

And  so  I  decided  that  I  would  get  out  as  soon  as  I  could, 
which  turned  out  to  be  May  of  1972--actually,  April,  I  guess. 
But  altogether,  my  active  duty  time  was  a  little  more  than  four 
and  a  half  years,  I  guess,  something  like  that. 

LaBerge:  Which  was  more  than  you  had  to? 

Maddow:   I  had  to  extend  a  little  bit  when  I  talked  my  way  into  the  Judge 
Advocate  General's  Corps,  because  I  had  been  in  the  procurement 
job  for  a  little  more  than  two  years  at  that  point,  and  they  made 
me  sign  on  for  two  years  of  JAG  service.   My  military  career  was 
odd,  but  I  have  to  confess  that  I  learned  a  lot  about  myself. 
It's  when  I  started  my  family;  I  got  married  when  I  was  in  the 
service,  to  someone  whom  I'd  dated  when  I  was  in  law  school.   We 
had  our  first  child  then,  and  began  to  really  start  the  main  part 
of  my  life  then.  Looking  back  on  it,  we  had  a  wonderful  life. 
We  lived  in  this  rented  duplex- - 

Family:  Elaine,  David,  and  Rachel 

LaBerge:   Now,  before  you  tell  me  that,  we  have  a  little  bit  of  time:  tell 
me  how  you  met  your  wife. 


Maddow:   She  crashed  a  party  that  I  was  invited  to.   (She  hates  that 
characterization,  but  I  maintain  that  it's  truel) 

LaBerge:   Her  name  is — ? 
Maddow:   Her  name  is  Elaine. 
LaBerge:   What  was  her  maiden  name? 

Maddow:   Gosse  [spells].   She's  from  Newfoundland,  and  had  come  to 

California  in  1963.  We  met  in  "65  at  a  party.  We  had  mutual 
friends  and  that  sort  of  thing,  and  we  began  to  see  each  other. 
And  then,  oh,  we  saw  each  other  a  little  bit  early  on,  and  then  I 
went  away  for  the  summer.  That  was  the  Rummer  when  I  was—let's 
see,  I  went  to  summer  school—that  was  the  summer  I  worked  in  the 
theatre.  And  then  came  back  the  next  year,  and  got  back  together 
again  in  the  beginning  of  my  second  year  of  law  school  and  really 
kind  of  became  serious  then.   In  fact,  it  was  the  end  of  that 
year  when  I  got  mononucleosis,  and  she  and  her  sister  were  the 
ones  who  nursed  me  back  to  health.  They  let  me  stay  in  their 
apartment.  They  both  worked  in  the  financial  business.  Elaine 
was  in  those  days  what  was  called  a  portfolio  analyst  for  Dean 
Witter.   That  was  one  step  below  being  what  they  called  a 
securities  analyst.   Nowadays,  they  don't  have  portfolio  analysts 
any  more  because  computers  do  all  of  the  work  that  she  did.  And 
her  sister  was  the  secretary  to  the  president  of  the  Pacific 
Coast  Stock  Exchange. 

Anyway,  we  became  serious  in  my  second  year  of  law  school, 
and  knew  in  my  third  year  of  law  school  that  we  were  going  to  get 
married  after  I  joined  the  service,  and  did.   She  is  absolutely 
the  best  thing  that's  ever  happened  to  me,  and  is  the  best  friend 
a  person  could  ever  have,  as  well  as  being  a  wonderful  wife  and  a 
wonderful  mother  of  our  two  great  kids .   So  our  life  together  has 
been  really  full  and  really  rich,  and  I  wouldn't  change  very  much 
about  it  at  all. 

Her  father  was  a  fisherman  who  married  later  on  in  his  life. 
When  I  say  fisherman,  in  Newfoundland  that  means  fishing  what's 


called  the  inshore  fishery,  which  is  fishing  for  codfish  out  of 
very  small  boats.  But  he  bought  land  as  he  could  with  the  money 
he  raised  there,  raised  eight  kids,  six  of  whom  are  still  back 
there,  and  then  Elaine  and  one  sister  out  here.   She  came  from-- 
it's  a  really  solid  stock  that  she  comes  from,  really  very  solid 
English  and  Irish  stock,  and  people  who  just  are  sort  of  the  salt 
of  the  earth.  Her  mother,  who's  eighty-seven,  is  still  alive,  a 
very  compelling  woman.   Seventy-seven  years  old  before  she  ever 
left  the  island  of  Newfoundland,  and  she  left  there  to  come  out 
to  see  us. 

LaBerge:   Oh,  my  gosh. 

Maddow:   So  it's  a  remarkable  family. 

LaBerge:  And  your  children,  you  have  a  son? 

Maddow:   I  have  a  son,  David,  who's  twenty-seven.  David  is  a  Bishop 

O'Dowd  High  School  graduate.  Went  to  UC  San  Diego,  graduated  in 
biology.   Didn't  know  what  he  wanted  to  do,  still  doesn't  know 
what  he  wants  to  do.  Works  in  a  law  firm  as  the  assistant  office 
manager,  where  he  does  everything  from  soup  to  nuts,  including 
everything  from  paralegal  work  to  bookkeeping  to  grunt  work  and 
office  management.   He  lives  in  San  Francisco.   He's  a  wonderful 
kid,  and  just  great  fun.   He's  still  in  search  of  the  perfect 
party,  I  tell  him.   [laughter]   He  can  do  anything  he  puts  his 
mind  to,  because  he  is  really  bright,  has  no  fear  of  anything, 
and  approaches  each  day  with  good  humor  and  great  wit.   Elaine 
and  I  are  really  proud  of  him. 

And  then  we  have  a  daughter,  Rachel,  who  is  twenty- three. 

LaBerge:  And  is  at  Oxford  right  now,  but  she  must  have  done  something 
before- -she  went  to  Stanford? 

Maddow:   She  did.   She  didn't  go  to  Bishop  O'Dowd;  she  went  to  Castro 

Valley  High,  and  then  went  to  Stanford,  and  just  lit  it  up.   I 
mean,  her  college  career  is  the  exact  antithesis  of  mine.   In  the 
first  place,  Rachel  when  she  was  young  was  very  athletic,  and 


actually  was  offered  the  ability  to  go  play  volleyball  a  couple 
of  places  and  that  sort  of  thing.  And  actually,  when  she  was 
applying  to  Stanford,  they  had  to  write  this  essay,  and  one  of 
the  things  she  put  in  her  essay  was  that  "I  have  a  tape  of  some 
of  the  highlights  of  my  volleyball  career  to  show  to  Coach  Shaw 
if  he's  interested  in  allowing  me  to  try  and  walk  on."  Well,  in 
the  spring  of  her  senior  year  in  high  school,  she  tore  up  her 
shoulder,  and  she  can't  do  anything  any  more.  But  all  the  energy 
she'd  put  into  athletics  have  gone  into  her  academics  and  her 
other  types  of  things. 

Rachel,  when  she  was  in  her  senior  year  in  high  school, 
began  to  work  as  a  volunteer  at  the  AIDS  Center  in  Oakland,  which 
in  those  days  was  headed  by  a  nun  in  her  sixties  whose  name  I  "ve 
forgotten.  But  Rachel  got  very  interested  in  AIDS,  and  ran  the 
AIDS  education  program  at  Stanford,  and  became  very  involved  in 
sort  of  health  care  issues  through  that.  And  worked  a  couple  of 
summers,  one  at  the  Leonard  Davis  Health  Economics  Institute, 
which  is  part  of  the  University  of  Pennsylvania,  and  one  summer 
she  worked  in  Washington  for  a  national  coalition  on  AIDS  policy, 
I've  forgotten  [the  name].   But  it  was  a  wonderful  opportunity  to 
learn  about  the  economics  of  health  care  delivery  on  the  one 
hand,  the  politics  of  it  on  another  hand,  and  then  all  the  things 
that  she'd  learned  through  all  of  her  other  work. 

Then  she  graduated  early;  she  won  all  kinds  of  awards, 
graduated  with  distinction,  all  these  kinds  of  things.  Won  an 
Elie  Wiesel  prize  for  an  essay  that  she  wrote,  and  won  a  medal 
for  her  thesis,  which  was  on  a  subject  related  to  AIDS  and  the 
delivery  of  health  care  to  AIDS  people.   And  then  won  a  Gardner 
fellowship;  there  are  six  of  those  granted  every  year,  three  for 
people  from  Berkeley,  three  from  Stanford.   They're  called 
Gardner  fellowships,  named  after  John  Gardner,  who  was  LBJ's 
secretary  of  HEW  [Health,  Education  and  Welfare]  and  then  has 
worked  for  all  the  presidents  since  then.  But  the  Haas  family 
endowed  a  fellowship  called  the  Gardner,  and  what  it  did  was 
enable  her  to  work  for  a  year  in  a  public  policy  position,  and 
they  provided  her  a  stipend.   She  worked  for  the  AIDS  Legal 
Referral  Panel  in  San  Francisco,  which  has  700  or  800  lawyers  who 


on  a  volunteer  basis  do  work  on  legal  problems  of  people  with 
AIDS  and  their  families.  They  have  a  public  policy  function 
headed  by  a  really  interesting  woman  named  Eileen  Hansen,  and 
Rachel  became  Eileen's  sort  of  number  two  and  got  all  involved  in 
the  state  legislation  and  regulation  issues  having  to  do  with 

And  then  the  real  big  thrill  was  that  she  was  chosen  to  be  a 
Rhodes  Scholar,  and  that's  why  she's  in  Oxford  now.  Actually, 
she  won  a  Marshall  and  turned  it  down  for  the  Rhodes . 

LaBerge:  My  gosh! 

Maddow:   There  haven't  been  too  many  of  those  in  the  last  few  years,  but 
she  was  one  of  them.   She  became  interested  in  the  Marshall 
because  when  she  was  a  junior  at  Stanford,  she  actually  spent  her 
fall  term  at  the  London  School  of  Economics,  and  she  was  kind  of 
thinking  she'd  like  to  go  back  there,  and  you  can't  do  that  with 
Rhodes,  but  you  could  have  with  the  Marshall.   But  then  a  number 
of  people,  including  people  whom  she  really  admired,  said, 
"Rachel,  you  can't  turn  down  a  Rhodes."   For  no  other  reason,  you 
can't  because  if  you  turn  down  the  Rhodes,  nobody  gets  it.   If 
you  turn  down  the  Marshall,  somebody  else  will  get  it,  and  that 
was  important  to  her,  because  one  of  her  roommates  was  trying  to 
get  a  Marshall  at  the  time. 

Anyway,  so  she's  in  her  second  year  at  Oxford.   We  should 
know  within  a  couple  of  weeks  whether  she'll  have  another  year 
there,  because  she's  trying  to  compete  her  way  into  what  they 
call  the  D.Phil,  program  to  end  up  with  essentially  a  Ph.D.  in 
politics.1  She's  just  finished  her  "viva."  The  viva  is  sort  of 
the  first  round  of  the  oral  defense  of  your  thesis.   Just  had 
that  a  couple  of  weeks  ago,  and  has  been  meeting  with  her 
advisors  and  supervisors  and  turned  in  another  mass  of  papers 
here  just  Friday.   I  just  talked  to  her  for  a  long  time  about  it 
yesterday.   She's  having  a  real  exciting  time. 

made  it--she  is  now  in  the  doctoral  program.  [Her  D.  Phil  was 
conferred  on  August  15,  2001]. 


Rachel  is  a  political  activist.  Her  politics  are  way  out  on 
the  left.  Rachel  thinks  that  there  are  people  in  society  and 
groups  in  society  that  are  victims ,  and  she  wants  to  do  something 
about  it,  and  victims  in  particular  through  the  work  she  started 
in  high  school:  people  with  AIDS  have  been  a  real  focus  of  hers. 
One  of  the  things  she  did  when  she  was  on  the  Gardner  fellowship 
was  to  write  a  piece  of  legislation  called  compassionate  release, 
which  had  to  do  with  women  with  AIDS  in  prison  who  are  dying  and 
who  would  like  to  be  released  so  they  could  die  at  home  with 
their  family.  It  started  off  being  a  women's  issue;  it  ended  up 
being  prisoners.  And  the  legislation,  she  wrote  it,  she  lobbied 
it,  she  did  the  testifying;  it  was  passed  by  unanimous  votes  in 
both  houses  of  the  legislature  and  vetoed  by  the  governor. 

But  that  got  her  really  interested,  and  so  she's  doing  her 
thesis  on  health  care  issues,  not  just  AIDS,  but  health  care 
generally  in  the  prison  systems  in  the  United  States  and  Great 
Britain,  and  she  has  become  very  interested  in  prisoners'  rights 
issues,  particularly  with  an  emphasis  on  health  care.   It's  a 
very  esoteric  field,  and  every  time  she  starts  digging  in,  she 
finds  that  there  are  people  who  say,  "We've  been  waiting  for  you, 
we've  been  waiting  for  someone  to  come  along  and  do  the  research 
that  you're  finally  doing.  This  is  an  area  that  needs 
attention,"  and  to  Rachel,  that's  a  real  attraction,  because  she 
sees  people  who  she  considers  to  be  victims  who  need  someone  to 
become  their  champion.  She'll  never  run  for  elective  office  or 
anything  like  that,  but  she  will  do  something  with  her  drive  and 
her  ability  to  focus,  and  she's  incredibly  articulate  and  a 
really  fun  kid  at  the  same  time. 

So  we're  blessed.   We  have  two  wonderful  kids. 

LaBerge:   It  sounds  like  it. 

Maddow:   We  have  one  who's  still  trying  to  find  himself,  and  I  think  at 
about  age  thirty  he  will,  and  he'll  do  something  important,  I 
just  don't  know  what  it  is.  And  Rachel,  who's  got  this 
incredible  ability  to  focus,  and  it's  always  been  that  way.   So 
we've  been- -it's  been  a  fast  ride  for  their  mother  and  me.   I 


don't  mean  to  dote  on  Rachel  in  that  respect,  because  both  of  the 
kids  have  been — we've  been  just  extremely  proud  of  each  of  them. 

LaBerge:   Well,  this  is  a  good  place  to  stop. 
Maddow:   I  don't  mind  talking  about  my  kids! 

LaBerge:  You  can  talk  more  the  next  time.  We'll  pick  up  there  and  at  the 
end  of  the  air  force,  and  what  happened  next. 

Maddow:   Great. 

Religious  Background 

[Interview  2:  February  17,  1997]  ## 

LaBerge:   Before  we  start  with  how  you  got  up  north  and  working  for  East 
Bay  MUD,  why  don't  you  tell  me  about  your  religious  background? 

Maddow:   I  did  not  have  a  real  strong  religious  upbringing.  My  parents 
attended  a  number  of  Protestant  churches  while  we  were  in 
Arizona,  although  not  regularly,  and  the  same  was  true  when  we 
moved  to  San  Diego.   There  was  nothing  really- -nothing  like  a 
strong  organized  religious  influence.   My  recollection  is  we 
attended  more  Presbyterian  churches  than  anything  else,  and  that 
may  have  come  from  my  mother ' s  Dutch  background .   I  do  recall 
attending  a  vacation  Bible  school-type  thing  in  a  Lutheran 
church,  actually,  in  Pacific  Beach  when  I  was  in  junior  high 

By  the  time  I  was  in  high  school,  my  mother  and  father  had 
become  very  interested  in  Christian  Science,  and  in  fact  later 
became  very  active  in  Christian  Science  for  many  years,  and  then 
in  more  recent  years  have  kind  of  fallen  away  from  that . 
However,  when  I  went  to  college  at  Stanford,  I  reasonably 
regularly  attended  the  nondenominational  chapel  there,  I  think  as 


much  as  anything  else  because  I  really  liked  the  music.  It  was  a 
sort  of  calm  in  the  middle  of  the  storm  of  college,  and  I  guess  I 
needed  that  once  in  a  while.  I  guess  I  realized  that. 

Then  after  I  married  Elaine,  Elaine  had  been  a  lifelong 
Catholic.   She's  from  a  large  family.  Two  of  her  sisters 
actually  became  nuns.  One  has  spent  her  life  in  a  religious 
order.  One  stayed  twelve  years  and  then  got  out  and  is  now  a 
social  worker.   But  we  had  talked  about  this  a  lot  while  we  were 
dating,  and  we  had  agreed  that  once  we  were  married,  that  we 
would  raise  our  children  as  Roman  Catholics  because  that's  what 
she  knew. 

After  attending  mass  with  Elaine  for  a  very  long  time — let's 
see,  I  guess  it's  about  ten  years  ago  I  went  through  a  program 
called  RCIA,  which  is  Rite  of  Christian  Initiation  for  Adults. 
That  was  the  first  year  that  particular  program  had  ever  been 
conducted  at  the  church  in  our  community,  and  I  was  in  sort  of 
the  first  class  and  still  am  an  active  member  of  the  parish 
there.   It's  a  church  called  Our  Lady  of  Grace  in  Castro  Valley. 
A  large,  old  church,  filled  with  sort  of  the  original  Castro 
Valley  Italian  and  Portuguese  families,  and  it's  kind  of  an  old- 
fashioned  church. 

For  about  the  last  fifteen  years  we've  had  Augustinians  who 
have  been  the  parish  priests.  We  have  not  had  diocesan  priests, 
and  we've  had  all  these  slightly  offbeat  Augustinians,  and  I've 
liked  them  a  lot,  and  that's  one  reason  we've  stayed  in  that 
church.   I  can't  profess  to  have  had  a  really  strong  religious 
upbringing.   But  now  I  am  a  fairly  active  member  of  the  parish  at 
our  church. 

I'm  not  active  in  the  sense  of  being  one  of  the  people  the 
church  always  turns  to  when  they  need  something  done,  but  I  am  a 
regular  mass  attender,  I  do  become  involved  in  some  of  the 
activities.   I  make  a  point  of  being  a  participant  in  certain 
aspects  of  the  congregational  life  and  that  sort  of  thing,  and 
it's  become  important  to  me.   It's  sort  of  a  source  of --oh,  I 


guess  I  would  say  strength  in  a  way,  but  calm,  in  a  way,  also. 
So  that's  always  been  important  to  me. 

Decision  to  Leave  L.A.  and  the  Air  Force 

LaBerge:  Okay.  Let's  go  back  to  the  air  force.  Your  stint  was  up,  and 
how  did  you  get  back  up  north?  Or  had  you  decided  already  you 
were  going  to  come  to  northern  California? 

Maddow:   I  had  always  thought  that  I  would  prefer  to  go  to  northern 

California  rather  than  southern  California.  My  parents  were 
still  in  San  Diego.   I  had  become  familiar  enough  with  the  Los 
Angeles  area  during  the  air  force  years.   We  were  fairly  lucky, 
because  we  lived  in  Hermosa  Beach,  and  I  worked  at  the  Los 
Angeles  Air  Force  Station,  which  was  about  five  miles  away,  and 
so  I  didn't  have  to  get  into  the  rat  race  of  downtown  Los  Angeles 
too  often.   But  occasionally  I  did,  and  I  didn't  like  it. 

My  sister  at  that  time  was  married  and  lived  way  out  on  the 
east  side  of  L.A.,  and  we  would  occasionally  go  out  there.  And 
each  time  we  did,  I  would  say  to  myself,  I  never  want  to  get  into 

Then  while  I  was  in  the  air  force,  we  had  a  fellow  who  had 
worked  in  our  office  while  he  was  in  law  school,  as  a  law  clerk, 
who  had  gotten  out  and  passed  the  bar,  and  he'd  gone  to  work  in 
the  legal  department  at  Texaco.   Their  office,  that  particular 
office,  was  out  on  Wilshire  Boulevard  on  the  west  side  of  the 
city.   I  guess  it  was  still  in  L.A.   And  he  had  talked  to  me  a 
couple  of  times  about  whether  I  might  be  interested  in  going  to 
work  there,  and  I'd  actually  gone  in  and  taken  a  look  at  the 
office  and  all  that,  and  I  knew  that  he  lived  in  Manhattan  Beach 
not  very  far  from  where  we  lived  in  Hermosa.   So  I  tried  out  that 
commute  a  couple  of  times,  and  I  said,  "This  is  not  for  me." 
Because  if  I  had  lived  in  Los  Angeles,  in  the  Los  Angeles  area,  I 
would  have  wanted  to  stay  out  at  the  beach. 


So  that  had  kind  of  given  me  a  little  sense  of  not  wanting 
to  stay  in  L.A.  And  I  had  always  really  enjoyed  the  Bay  Area. 
I'd  been  here  seven  years  for  college  and  law  school.   So  I  began 
to  think  more  about  trying  to  locate  job  opportunities  in 
northern  California. 

I  also  need  to  tell  you  that  up  through  the  early  part  of 
1972,  when  I  was  still  on  active  duty,  the  Staff  Judge  Advocate, 
my  boss  there  in  the  air  force  legal  office,  was  trying  hard  to 
convince  me  that  I  ought  to  make  a  career  of  the  air  force. 
Actually,  he  was  able  to  give  me  a  pretty  good  indication  of 
where  I  would  go,  because  it  was  clear  I  wouldn't  be  staying  at 
Los  Angeles  Air  Force  Station  any  longer. 

LaBerge :   Is  this  Colonel  Nunn? 

Maddow:   No,  by  this  time  I  was  working  in  the  legal  office,  I  was  away 

from  Colonel  Nunn  by  now.   He  was  running  the  business  and  I  was 
in  the  Staff  Judge  Advocate's  office,  so  I  was  away  from  him.   I 
was  working  for  a  man  named  Colonel  Chet  Taylor.   Colonel  Taylor 
was  a  gung-ho  military  guy.  He  really  wanted  to  get  young 
captains  to  stay  beyond  their  first  tour,  and  so  he  worked  very 
hard  on  the  four  of  us  he  had  at  that  time,  as  I  recall--!  think 
there  were  four  of  us  in  our  office.   One  actually  did  stay  and 
made  a  career  of  it.   But  I  wasn't  very  interested,  and  so  he 
began  to  try  and  tell  me  that  I  ought  to  be  interested  because  he 
knew  that  Elaine  and  I  would  like  to  travel,  and  we  had  one  child 
at  the  time.   That  would  be  good  for  all  of  us. 

So  he  was  able,  through  channels  that  he  had,  to  find  out 
that  my  next  assignment  would  be  either  what  was  known  as  an 
unaccompanied  assignment,  meaning  I  would  go  alone  and  leave  my 
family  behind.   That  would  be  to  Guam.   Or,  I  had  a  chance  at  an 
accompanied  assignment  to  a  place  called  Misawa  [spells]  Air 
Base,  which  is  up  near  Sapporo  [spells],  Japan,  which  you  may 
remember  because  of  the  name  of  the  beer  that  goes  with  Sapporo, 
but  what  I  remember  more  importantly  is,  it's  where  they  had  the 
Winter  Olympics.   So  that  was  going  to  be  a  cold  place,  and  I 


didn't  want  to  go  to  a  cold  place.   I  didn't  want  to  go  to  Guam 
alone  either,  and  I  didn't  want  to  go  to  the  Philippines. 

So  all  of  Colonel  Taylor's  efforts  were  for  naught,  and  I 
got  out. 



Interview  with  Jack  Reillev 

Maddow:   But  I  had  started  in  late  1971  to  look  around  a  little  bit.   I 
was  thinking  at  that  time  that  a  job  for  a  public  agency  would 
make  some  sense,  but  I  was  more  focused  on  county  counsel's 
offices,  you  know,  the  lawyer  for  a  county.   I  actually  went  up 
and  interviewed  with  the  county  counsels  in  Sonoma  County  and  in 
Marin  County.   They  didn't  have  job  opportunities  that  coincided 
very  well  with  when  I  was  getting  out,  however,  so  nothing 
materialized  out  of  that. 

But  through  that  process,  I'd  been  back  in  San  Francisco, 
and  I  went  over  to  Hastings  Law  School  to  the  placement  service 
and  put  my  name  in,  and  did  some  things  like  that. 

In  the  meantime,  I  was  independently  pursuing  some 
opportunities  I  had  found  out  about  in  district  attorneys' 
offices.  A  lot  of  lawyers  start  there;  that's  where  you  can 
first  get  some  trial  experience.  At  that  point,  I  thought,  Well, 
maybe,  although  my  military  legal  experience  had  convinced  me  I 
really  wasn't  a  trial  lawyer.   But  I  had  submitted  the  papers  and 
actually  gone  through  an  interview  for  the  San  Mateo  District 
Attorney's  office,  and  had  a  job  offer  that  was  pending. 

At  about  the  time  that  offer  was  made  to  me,  I  was  contacted 
by  the  Hastings  placement  service,  and  they  said,  "Somebody  has 


taken  a  look  at  your  application  and  your  resume  and  would  like 
you  to  come  to  a  preliminary  round  interview."   I  said,  "Who  is 
it?"  And  they  said,  "Well,  it's  East  Bay  MUD."  And  I  said, 
"What?"  They  explained  it  to  me,  and  it  still  meant  nothing  to 
me.   But  I  said,  "Well,  send  me  the  papers." 

What  fascinated  me  was  that  this  was  going  to  be  an 
interview  the  likes  of  which  I'd  never  heard  of  before.   Instead 
of  a  situation  where  I  would  go  in  and  talk  to  some  person  who 
would  be  interviewing  me,  I  would  go  in  along  with  five  or  six 
other  people,  and  we'd  go  through  what  I  jokingly  told  Elaine  was 
a  group  therapy  session  with  somebody  who  would  decide  whether  or 
not  they  wanted  to  hire  one  of  us.  Well,  I  was  fascinated  by  it, 
and  I  wasn't  threatened  or  anxious,  because  I  had  the  San  Mateo 
County  job  offer.   And  so  I  said,  "Oh,  what  the  heck,  I'll  do 
it,"  and  they  said  they  would  pay  my  way.   I  think  in  those  days 
you  could  fly  up  and  down  the  coast  on  PSA  for  nineteen  dollars 
or  something. 

The  person  I  was  speaking  to  at  East  Bay,  once  I  decided  I 
would  do  it,  was  a  man  named  Clark  Sharick  [spells] .   And  Clark 
was  saying,  "Well,  this  is  going  to  be  very  early  in  the  morning, 
and  we'll  put  you  up  in  a  hotel."   I  said,  "Well,  actually,  what 
I  would  like  to  do,  if  I  can  make  the  logistics  arrangements,  is 
to  fly  up  and  stay  with  my  wife's  sister,"  who  was  living  in  San 
Francisco  at  the  time.   So  I  did  that,  I  flew  up  late  in  the 
afternoon  the  previous  day  and  had  dinner  with  her,  and  then  it 
turns  out  Clark  Sharick  also  lived  in  San  Francisco,  so  he  said, 
"I'll  stop  by  and  pick  you  up." 

I  remember  two  things  about  it,  it's  funny.   He  had  a 
Porsche.   It  was  funny,  because  I  knew  nothing  about  Porsches, 
but  this  one  was  a  very  distinctive  color,  and  the  one  other 
Porsche  I'd  been  in,  probably  ever  before  then,  was  the  same 
color.   And  so  I  said  to  him,  "Oh,  this  is  Bahama  yellow." 
[laughter]   Well,  he  thought  that  was  just  great,  so  right  away, 
he  and  I  seemed  to  [hit  it  off]. 


And  then  I  remember  he  took  me  into  the  cafeteria,  because 
he  wanted  to  get  a  cup  of  coffee  before  we  went  to  this  interview 
place.   I  remember  looking  around  and  it  looked  like  an  old 
barracks  building,  and  I  thought,  What  is  this?  A  steam  table 
and  all.   I  had  no  idea  what  I  was  getting  into. 

LaBerge:   And  was  he  in  the  legal  department? 

Maddow:   No,  Clark  was  in  the  personnel  department,  and  he  was  the  person 
who  was  running  this  particular  exam.  This  was  their  form  of 

The  interview  turned  out  to  be,  I  think  there  were  five  or 
six  other  people,  I  think  all  men,  as  I  recall,  each  of  whom  was 
interested  in  this  job  opening.   The  people  who  were  doing  the 
interviewing  included  Jack  Reilley,  and  a  man  named  Mack  Carter. 
I  don't  remember  what  Mack's  job  title  was  back  then,  but  he  was 
a  pretty  high-ranking  executive  at  the  district.   And  a  man  named 
[Ed]  Lane. 

I  think  it  was  Ed  Lane,  who  at  that  time--maybe  still,  I 
guess--is  in  the  county  counsel's  office  up  in  Contra  Costa. 
They  brought  him  in  to  be  an  outside  interviewer. 

The  interview  process  was  one  in  which  they  had  a  series  of 
questions  and  ideas  that  they  would  throw  out  to  us,  and  each  of 
us  was  supposed  to  address  whatever  these  matters  were,  sort  of 
in  turn,  and  without  stepping  on  one  another.  This  was  not 
supposed  to  be  like  elbowing  each  other  out  of  the  way.  And  I 
found  it  very  interesting,  because  I  was  very  relaxed.  Most  of 
the  other  people  were  uptight.   I'd  had  four  and  a  half  years  in 
the  air  force  by  then,  and  I  didn't  get  intimidated  by  facing 
legal  issues.   I  had  developed  a  kind  of  a  results-oriented  sort 
of  problem-solving  approach  to  dealing  with  issues  like  that.   I 
thought  the  interview  was  great  fun,  and  I  thought  to  myself, 
They'll  never  be  interested  in  me.   I'm  too  relaxed,  or  laid 
back,  or  something. 


So  the  interview  ended  that  afternoon.  Then  I  had  a  one-on- 
one  session  with  Reilley  later  on  during  the  day,  as  did  each  of 
the  people,  and  I  was  one  of  the  last  ones,  as  I  recall.  Then 
they  gave  me  a  little  chit  and  put  me  in  a  taxicab,  and  I  went 
back  out  to  the  airport  and  flew  back  to  Hermosa  Beach,  and  told 
Elaine,  "There's  no  chance  I'll  get  that  job,  so  I  guess  we'd 
better  start  looking  for  an  apartment  in  San  Mateo." 

The  next  day,  Reilley  called  me  and  he  said,  "I  want  you  to 
come  up  here  and  take  this  job."   [laughter]  He  wasn't  quite 
that  blunt,  but  we — he  and  I  had  kind  of  sparked  right  away. 
There  was  easy  communication  between  us.   So  I  really  didn't 
think  twice  about  it.   It  looked  to  me  like  something  that  meant 
that  I  would  not  be  a  trial  lawyer  trying  burglaries  for  the  next 
two  years,  which  frankly  wasn't  all  that  appealing  to  me.   I 
didn't  know  very  much  about  what  a  water  utility  was,  but  I  could 
tell  from  talking  to  Reilley,  Mack  Carter  and  Clark  Sharick,  and 
in  particular  a  little  bit  of  the  interchange  with  Ed  Lane  about 
what  he  saw  about  what  the  East  Bay  MUD  job  was,  that  there  would 
be  a  lot  of  variety,  and  that  it  would  be  business-oriented, 
transactional-oriented  as  opposed  to  litigation-oriented,  so  I 
said,  "Let's  try  it."  For  two  years,  how  can  you  go  wrong? 

Describing  the  Office 

LaBerge:  And  was  that—was  it  going  to  be  two  years? 

Maddow:   No,  that's  what  I  thought.   Two  years — .   I  knew  they  had  a 
probationary  process,  and  I  figured  I  wouldn't  have  too  much 
trouble  surviving  probation,  but  I  figured,  I'll  give  it  a  try 
for  a  couple  of  years.   Because  that's  what  I  had  always  thought 
I  would  do  in  a  D.A. 's  office  if  I  went  there  for  openers. 

Well,  as  it  turned  out,  I  had  so  much  fun  that  I  stayed 
twenty  years.   [laughter]   When  I  first  went  there,  I  really 


wasn't  sure  what  I  was  doing.   I  had  a  pretty  good  idea  of  who  I 
was  and  what  it  meant  to  be  a  lawyer,  but — 

LaBerge:   What  was  the  job  description? 

Maddow:   At  the  time,  the  district  had  two  other  lawyers  in  the  office 
besides  Jack  Reilley.  One  of  them  had  been  there  a  very  long 
time,  maybe  twenty  years,  almost  twenty  years.  One  of  them  had 
been  there  like  five  years.  Each  of  them  did  a  little  bit  of 
everything.   I  was  the  new  person  who  came  in  as  what  was  called 
in  those  days  an  assistant  attorney,  appointed  by  the  board  of 
directors  to  serve  at  the  pleasure  of  the  board  to  do  the  legal 
work  of  the  district  under  the  direction  of  Jack  Reilley. 

LaBerge:   Who  were  the  other  two? 

Maddow:   Frank  Howard,  whom  I  think  you  know,  and  a  man  named  Wayne 

Witchez  [spells].  Wayne,  I  think,  is  dead  now.  They  were  the 
three-person  legal  staff  for  the  utility  district  at  that  time. 
Frank  had  primarily  responsibility  in  the  areas  related  to  the 
district's  wastewater  department.   You  know,  East  Bay  has  the  big 
water  function,  but  it  also  has  a  very  big  wastewater  department, 
and  wastewater  activities  were  very  busy  then.   And  Frank  also 
did  a  lot  of  work  with  the  district's  personnel  and  human 
resources  type  issues  and  that  sort  of  thing. 

In  those  days,  Jack  Reilley--he  didn't  carve  out  hard  and 
fast  pigeonholes  quite  as  much  as  he  had  to  in  later  years  as  the 
legal  work  increased.   And  certainly  not  as  much  as  I  did  later 
on,  because  the  pace  and  volume  of  legal  work  continued  to  spiral 
upward  during  the  time  I  was  general  counsel,  and  we'll  get  to 
that  later.   But  Frank  was  clearly  the  number-two  person.   He'd 
been  there  with  Jack  a  long  time.  Wayne  had  been  there  for  a 
shorter  period  of  time,  and  Wayne  was  like  the  office  pitbull. 
Wayne  was  the  guy  who  would  go  off  and  handle  defense  matters, 
and  take  on  construction  contractors.   Wayne  loved  to  get  in 
there  and  just  fight.   He  was  kind  of  a  street  smart  guy,  and  was 
very  effective  in  his  own  way.   He  wasn't  a  master  of  the  written 
word  or  anything  like  that,  and  sometimes  he  got  his  tongue  all 


tangled  up  when  he  was  speaking.   But  he  had  a  very  quick  wit, 
and  he  had  a  real  good  litigator's  instinct.   He  was  an 
aggressive  guy,  and  he  knew  a  lot  of  stuff.   So  he  was  a  pretty 
effective  fellow  there. 

I  was  the  first  ever  number-four  lawyer.  When  I  went  there, 
there  was  no  place  for  me  to  sit,  because  they  had  not  needed  a 
fourth  office  then.   So  during  the  first  several  weeks  that  I  was 
there,  I  sat  in  the  library  as  the  district's  carpenter  staff,  I 
guess,  was  remodeling  the  place  a  little  bit  to  carve  out  a  new 
office  and  give  me  a  place  to  sit. 

I  remember  being  back  at  this  old  sort  of  Formica-topped 
library  table  with  a  hot  plate.  A  woman  who  was  no  longer  in  the 
office,  she  had  been  until — I  don't  know,  not  too  many  months  or 
I  guess  years  before  I  came  there,  but  that  was  where  Myrtle 
cooked  her  lunch.   [laughter]   I  just  have  this  sort  of  vague 
recollection  of  that. 

CEQA.  NEPA.  and  ACWA 

Maddow:   When  I  first  was  in  the  office,  the  first  thing  that  I  did  was  to 
try  and  learn  a  little  bit  about  what  a  water  district  was  all 
about  and  what  it  meant  to  be  a  lawyer  for  a  water  district.   I 
fairly  early  on  began  to  work  on  some  contract  problems ,  because 
Jack  knew  I  had  a  background  in  contract  work  with  the  air  force. 
I  had  gone  to  work  there  in  May  of  1972  and  in  June  of  1972,  the 
state  supreme  court  decided  a  case  called  Friends  of  Mammoth  v. 
Board  of  Supervisors  of  Mono  County.1  That  was  the  first  case  in 
which  the  California  Environmental  Quality  Act  was  interpreted  by 
the  state  supreme  court  as  having  very  broad  significance  in 
regard  to  decisions  made  by  government  agencies.   Until  that 
case,  there  had  been  a  perception,  I  guess,  that  the 
Environmental  Quality  Act  was  meaningful  primarily  for  public 

18  Cal.3d  247 


works  projects,  but  in  the  Mammoth  case,  the  supreme  court  said 
that  a  public  agency- -in  that  case,  the  board  of  supervisors- - 
needed  to  evaluate  the  environmental  impacts  of  a  private 
project—as  I  recall,  it  was  a  hotel  project — prior  to  granting 
some  land  use  approval. 

That  came  as  a  bit  of  a  shock,  and  it  was  sort  of  the 
opening  of  the  era  of  what  we  now  know  as  environmental  law  in 
California  state  law.  The  Environmental  Quality  Act  had  been, 
enacted  I  think  in  1969  or  1970-- 

LaBerge:   This  is  the  California  one? 

Maddow:   The  California  Environmental  Quality  Act,  or  CEQA.1  It  was  sort 
of  in  the  aftermath  of  the  National  Environmental  Policy  Act,2 
NEPA,  which  had  been  enacted  a  few  years  earlier.   California, 
like  a  lot  of  other  states,  enacted  its  own  environmental 
protection  statute.   They  were  commonly  called  "little  NEPAs"  in 
those  days.   And  California's  little  NEPA  was  thought  to  be 
narrower  in  application  and  significance  until  this  case. 

Well,  Jack  realized  that  this  case  was  going  to  be 
important,  because  the  district  had  a  fairly  ambitious  program 
ahead  of  it  in  terms  of  its  public  works  needs,  and  he  could  see, 
I  think,  that  the  new  era  of  environmental  law  was  going  to 
change  the  way  in  which  the  district  would  be  able  to  go  about 
meeting  those  public  works  needs,  and  so  he  wanted  somebody  to 
get  involved,  and  I  was  the  one  he  picked. 

Now,  at  the  time  I  went  to  work  for  the  district,  it  had 
already  signed  the  contract  with  the  Bureau  of  Reclamation  for 
the  American  River  water.   That  was  signed  in  1970.  And  in  1972, 
when  I  went  to  work  there,  the  district  had  an  American  River 
project  team,  and  in  fact  had  already  hired  a  consultant --the 

'A.B.  2045,  Environmental  Quality  Act  of  1970,  1970  Reg.  Sess.,  Cal. 
Stat.  ch.  1433  (1970). 

National  Environmental  Policy  Act  of  1969,  83  Stat.  852  (1970). 


name  of  the  firm  was  Jones  &  Stokes,  they  still  exist — to  write 
an  environmental  impact  report  on  the  right  of  way  for  the 
pipeline  to  bring  American  River  water  from  the  Folsom  South 
Canal  up  in  Sacramento  County  down  to  the  district's  service 

So  it's  not  as  though  the  district  didn't  understand  CEQA, 
and  that  they  were  going  to  have  to  comply  with  it,  but  the 
concern  was  that  with  this  supreme  court  decision,  CEQA  was  going 
to  change,  and  the  utility  district  needed  to  be  aware  of  it. 
And  so  in  the  aftermath  of  the  Mammoth  case,  there  was  a  fairly 
extensive  effort  in  the  California  legislature  to  amend  the 
statute  to  try  and  provide  a  road  map  to  public  agencies  as  to 
what  this  broader  statutory  application  was  going  to  mean.   How 
do  public  agencies  apply  CEQA  now  that  we  know  it's  got  broader 
application?  And  there  was  a  bill  that  was  introduced  by  the 
assemblyman  who  was  from  Richmond,  his  name  was  Jack  Knox,  John 
T.  Knox-- 

LaBerge:   Okay.   He  was  one  of  your  mentors? 
Maddow:   Well,  in  a  sense,  yes. 
LaBerge:   Or  you  learned  something — 

Maddow:    I  learned  a  great  deal  from  him.   Mentor  is  a  little  too  strong, 
but  certainly  someone  from  whom  I  learned  a  great  deal,  and  from 
whom  I  benefited  from  contact.   It  wasn't  always  favorable 
contact.   Now,  actually,  I  guess  I  could  say  that  we're  on  a 
pretty  friendly  basis,  but  there  were  some  tough  times  at  the 

But  Knox  was—at  that  time,  I  believe  he  was  the  chairman  of 
the  Assembly  Local  Government  Committee,  and  that's  why  it  fell 
under  his  domain.   He  had  as  a  staff  assistant  a  man  named  Tom 

Thomas  H.  Willoughby,  an  oral  history  conducted  in  1988,  for  the 
California  State  Archives,  Regional  Oral  History  Office,  University  of 
California,  Berkeley,  1990. 


LaBerge:   We  have  an  oral  history  with  him. 

Maddow:   Oh,  that's  wonderful. 

Tom  was  the  staff  guy  who  was  heading  up  Jack  Knox's  effort 
to  deal  with  the  act. 

There's  a  water  industry  trade  association  that  in  those 
days  I  think  was  still  known  as  the  Irrigation  Districts 
Association.   It's  now  known  as  ACWA,  the  Association  of 
California  Water  Agencies.   ACWA  had  a  state  legislative 
committee,  and  East  Bay  MUD  was  very  active  in  that  committee. 
Its  lobbyist  in  those  days  was  a  man  named  Rod  Franz  [spells] , 
who  was  an  All-American  football  player  at  Cal  and  is  sort  of  a 
legendary  character,  and  we  can  talk  some  more  about  him. 
Between  Rod's  activities  with  that  association  and  another 
association  called  CMUA,  California  Municipal  Utilities 
Association,  of  which  Jack  Reilley  headed  the  Legislative 
Committee,  there  were  quite  a  few  opportunities  for  the  district 
to  become  involved  in  helping  to  shape  that  piece  of  legislation. 

Our  concern  was  that  there  was  going  to  be  a  great  deal  of 
attention  paid  to  cities  and  counties  which  have  land  use 
authority  over  the  development  of  land,  subdivisions,  et  cetera, 
and  that's  where  there  would  be  a  lot  of  attention  paid  to 
environmental  impact  reports,  environmental  documentation, 
consideration  of  environmental  effects.   Here's  this  water 
district  that  wants  to  build  this  pipeline  across  hill  and  dale, 
knowing  full  well  that  there  would  be  environmental 
considerations  that  would  enter  into  it.  And  in  addition  to 
that,  it  was  a  water  agency  that  even  back  in  the  seventies  was 
facing  questions  about  urban  development  and  growth,  and  one  of 
the  issues  that  was  starting  to  be  heard  way  back  then  was, 
what's  the  relationship  between  providing  water  to  an  area  where 
growth  is  proposed  and  approving,  or  dealing  with,  the  growth 
itself?   So  one  of  the  principal-- 

CEQA  Guidelines  and  Evolution  of  Environmental  Law.  1972 

LaBerge:  Okay,  the  relationship  between  providing  the  water  and  dealing 
with  the  growth  itself? 

Maddow:   Yes.   The  cities  and  the  counties  dealt  with  whether  or  not  a 
particular  subdivision  met  with  their  zoning  and  planning 
requirements,  et  cetera.   But  what  we  were  faced  with  was,  Is 
there  a  water  supply  available  to  serve  those  subdivisions?  Or, 
are  there  water  facilities  available?  I  can  remember 
participating  in  these  meetings  where  here  I  was,  this  young  kid 
who  barely  knew  what  a  water  utility  was,  standing  up  there 
talking  to  Tom  Willoughby  and  the  people  from  the  California  Real 
Estate  Association  and  the  Farm  Bureau  and  whoever  else.   They'd 
be  talking  about  the  issues  that  would  be  of  concern  to  them,  and 
I  would  be  saying,  "Now,  one  of  those  subdivisions  has  to  have  a 
water  tank,  and  the  only  way  you  can  build  the  water  tank  is  you 
put  it  up  on  top  of  the  nearest  hill,  where  it's  conceivably 
going  to  be  an  eyesore.   Now,  who  worries  about  those 
environmental  impacts,  and  how  does  that  process  work?" 

So  that  was  a  part  of  the  discussion  of  how  something  that's 
called  the  "lead  agency  principle"  evolved,  and  I  was  very  much 
involved  in  first  the  legislation  and  later  the  evolution  of  the 
state  regulations,  called  the  CEQA  guidelines,  on  what  the 
relationships  are  between  water  agencies,  as  an  example,  or  sewer 
agencies,  and  general  purpose  units  of  government—cities  or 
counties--in  regard  to  land  use  matters.   The  principle  is  that, 
since  it's  the  land  use  that  is  really  the  driving  factor,  the 
city  or  the  county  ought  to  be  the  lead  agency  with  the  primary 
responsibility  for  dealing  with  all  of  the  environmental  impacts 
of  a  proposed  land  use.   The  water  agency  ought  to  be  a 
"responsible"  agency  to  deal  solely  with  the  environmental 
impacts  of  getting  water  to  that  subdivision,  or  getting 
wastewater,  dealing  with  wastewater  services  or  what  have  you. 

The  idea  was  that  the  water  agency  should  not  become  a  small 
tail  wagging  a  great  big  dog,  because  we  were  always  afraid  that 


that  would  happen,  and  what  we  didn't  want  to  have  happen  was  a 
city  or  a  county  saying  it's  okay  to  build  this  big  subdivision, 
but  oh,  by  the  way,  water  hasn't  been  dealt  with,  and  then  the 
environmental  impact  report  or  other  considerations  related  to 
the  water  facilities  become  the  focal  point  of  the  concern  about 
whether  this  big  activity  is  going  to  go  forward.   In  those  days, 
the  worst  case  scenario  that  you  thought  about  was,  if  you  can't 
get  your  water  facilities  in,  do  you  end  up  effectively  with  the 
utility  buying  the  property  or  being  sued  for  inverse 
condemnation,  because  it  hasn't  done  its  thing  properly  or  in  a 
timely  fashion,  and  therefore,  the  query  as  to  whether  that's  a 
taking  of  the  private  property. 

We  now  know  that  it  would  not  have  been.   Inverse 
condemnation  law  and  the  law  of  takings  has  evolved.   But  in 
those  days,  we  didn't  know  all  that,  and  so  we  had  to  be 
concerned  about  some  worst  case  scenarios. 

I've  dwelled  on  all  of  that  because  it's  important  to  me, 
from  the  standpoint  of  the  evolution  of  my  time  at  East  Bay  in  a 
couple  of  ways.   First  place,  it  allowed  me  to  get  in  on  the 
ground  floor  of  environmental  law  in  the  state  and  for  East  Bay, 
and  I  think  that's  important  because  environmental  issues  have 
been  very  significant  to  the  East  Bay  ever  since. 

Second,  it  gave  me  an  opportunity  to  develop  sort  of  a 
network  of  people  with  whom  I  could  relatively  easily  communicate 
throughout  the  water  industry,  and  at  least  for  a  time,  in  state 
government.   Tom  Willoughby  was  one  of  them.   He  was  one  of  the 
most  capable  legislative  staff  people  I  ever  met,  and  is  now  a 
very  capable  lobbyist  for  PG&E.   I  guess  that's  where  he  still 
is;  I  haven't  seen  him  in  years. 

Assemblyman  Knox  was  one  of  the  best,  in  my  opinion.   He 
didn't  always  agree  with  what  East  Bay  MUD  was  saying  or  what  I 
was  advocating,  but  I  always  thought  he  was  an  absolutely 
outstanding  legislator.   The  people  I  worked  with  in  this  ACWA 
group  were  primarily  lawyers,  and  some  managers;  I  was  very 
fortunate  in  that  I  was  able  to  develop  some  relationships,  some 

LaBerge : 
LaBerge : 
Maddow : 


of  which  I've  maintained  right  through  to  today  with  people  whom 
I  consider  to  be  part  of  the  network  of  people  I  deal  with  in  the 
water  industry,  people  up  and  down  the  state.  And  it  goes  back 
to  those  early  days  in  '72  and  '73  dealing  with  the  CEQA 
amendments  in  A.B.  8891  and  then  the  first  efforts  to  develop  the 
state  EIR  guidelines. 

So  it's  A.B.  889? 

I  believe  it  was  A.B.  889,  and  then — 

In  '73? 

I  think  it  was  in  '72. 

One  of  the  things  that  the  bill  did  was  to  provide  that  the 
state  government  would  issue  regulations  that  would  further 
interpret  and  implement  CEQA,  and  the  process  of  development  of 
those  regulations  was  also  quite  intense,  quite  active,  and  I  was 
pretty  well  up  to  my  hips  in  that  one  as  well.   And  again,  the 
ACWA  group  was  instrumental  in  that. 

Political  Reform  Act  of  1974 

Maddow:   That  formed  a  kind  of  a  pattern,  and  a  few  years  later,  for 
example,  just  to  digress  further,  after  Watergate  in  '73,  I 
guess,  there  was  an  initiative  called  the  Political  Reform  Act 
that  was  approved  by  the  voters  in  1974.   This  was  a  very 
comprehensive  initiative,  unlike  most  of  the  ones  we've  been 
living  with  ever  since.   But  what  that  did,  I  believe  it  was 
called  Proposition  9  in  1974, 2  it  was  written  by  two  people  who 

'A.B.  889,  Amendments  to  Environmental  Quality  Act  of  1970,  1972  Reg. 
Sess.,  Cal.  Stat.  ch.  1154  (1972). 

Proposition  9  (June  1974)  . 


worked  for  then  Secretary  of  State  [Edmund  G.,  Jr.]  Jerry  Brown, 
a  man  named  Bob  Stern  and  a  man  named  Dan  Lowenstein.   I've 
forgotten  what  Bob  Stern  does  now.  I've  come  across  him  since 
then,  but  I've  forgotten.  Dan  Lowenstein  now  teaches  at  UCLA,  law 

But  the  Political  Reform  Act  involved  trying  to  clean  up 
California  political  life,  I  guess  I  would  say.  That  was  from 
the  perspective  of  Mr.  Brown.   It  dealt  with  issues  of  conflict 
of  interest,  campaign  expenditures  and  disclosures  of  campaign 
contributions,  and  matters  like  that.  The  conflict  of  interest 
chapter  required  every  public  agency  to  have  something  called  a 
conflict  of  interest  code,  which  in  essence  was  intended  to 
require  officials  of  local  agencies  to  disclose  their 
investments,  their  income,  et  cetera,  and  to  disqualify 
themselves  if  they  ever  had  the  opportunity  to  participate  in 
government  decision-making  that  could  have  an  influence  or  an 
impact  on  a  business  entity  in  which  they  had  an  investment,  or  a 
real  estate  investment,  or  a  source  of  income  to  them. 

Here  again,  the  legislation,  which  was  by  initiative,  called 
for  the  adoption  of  regulations,  and  the  ACWA  group  became  one  of 
the  major  spearheads  for  trying  to  sort  through  the  regulations, 
in  particular  on  conflict  of  interest.   Our  concern  was  that 
water  agencies  would  be  able  to  continue  to  make  decisions  in 
spite  of,  or  in  compliance  with,  or  whatever  it  was,  that 
whatever  the  implications  of  this  new  statute  would  be.  None  of 
us  knew  at  the  time.   It  looked  huge  and  very  imposing. 

As  I  say,  the  two  authors  of  the  Political  Reform  Act  were 
Dan  Lowenstein  and  Bob  Stern.   The  act  created  the  Fair  Political 
Practices  Commission.   Dan  was  its  first  chair,  Bob  was  its 
general  counsel.   We  worked  closely  with  them  in  evolving  these 
regulations.  And  I'll  just  give  you  one  quick  example  to  give 
you  an  idea  of  what  we  were  talking  about. 

Suppose  you  had  a  water  agency  official  who  held  stock  in 
his  or  her  personal  investments  in  the  PG&E  company.   And  let's 
assume  that  the  water  agency,  as  many  do,  had  business 


transactions  with  PG&E.  A  water  agency  that  buys  its  power  to 
run  its  pumps  from  PG&E  is  probably  not  going  to  have  very  much 
of  an  impact  on  PG&E,  because  they're  just  another  customer.   On 
the  other  hand,  what  about  a  water  agency  that  generates  power 
and  sells  it  to  PG&E?  That  could  be  a  pretty  significant 
financial  transaction. 

The  Fortune  500  Test 

Maddow:    So  the  water  agency  group  spearheaded  the  effort  to  make  sure 

that  the  conflict  of  interest  law  was  applied  to  things  that  were 
relevant  to  the  particular  agency's  field  of  jurisdiction,  and  to 
make  sure  that  we  weren't  picking  up  nickels  and  dimes,  because 
that  might  be  more  constraining  than  the  authors  of  the  statute 
or  the  voters  intended,  but  instead  to  pick  up  things  that  had  a 
material  financial  effect.  Those  were  the  words  of  the  statute. 

And  we  helped  to  evolve  tests.   For  example,  if  the  entity 
that  you're  interested  in  is  a  very  large  entity,  the  water 
agency  group,  myself  included,  said  things  like,  "We  don't  want 
to  pick  up  the  nickel-and-dime  decisions.   We  want  to  pick  up  the 
things  that  mean  something  to  them."  And  the  bigger  the 
corporation,  the  bigger  the  impact  needs  to  be,  and  we  were  the 
ones  who  authored  something  called  the  Fortune  500  Test.   If  it's 
a  Fortune  500  corporation,  then  the  impact  needs  to  be  big,  a 
million  dollars  or  something.   Whereas  if  it's  a  company  with 
annual  business  of  $100,000,  a  $1,000  transaction  is  material. 
So  we  were  trying  to  say,  "Let's  make  sure  that  everything  is 
targeted  and  focused,  because  then  the  result—trying  to  achieve 
political  reform- -can  be  achieved  in  a  meaningful,  rational  way 
that  we  can  explain  to  our  clients,  and  we  can  work  under  this 
law,"  which  all  of  us  knew  was  a  heck  of  a  good  idea. 

Reilley  let  me  go  work  on  that  stuff.  Reilley  knew  that  in 
the  long  run,  it  was  going  to  have  a  big  impact  on  the  utility 
district.   He  didn't  say  a  whole  lot  about  these  things,  but  as  I 


would  talk  to  him  about  these  things,  there's  no  question  in  my 
mind  that  he  had  a  great  vision  of  what  the  utility  was,  what  its 
role  was,  how  it  was  different  from  other  utilities  like  those 
that  get  their  water  supply  from  the  state  or  the  federal 
government.   It  was  independent.   It  stood  all  by  itself.   How  it 
was  different  from  cities  and  counties.  Had  to  relate  to  them, 
but  it  was  different  from  them.   Stood  all  by  itself.  And  so  he 
knew  that  as  environmental  law  was  evolving,  and  as  this  new 
political  law  stuff  was  evolving,  it  was  going  to  be  important 
for  the  utility  district  to  understand  it  to  the  extent  that  the 
utility  district  was  able  to  see  things  because  of  its 
independence  that  maybe  others  didn't  see,  that  we  needed  to  be 
able  to  take  a  role  in  shaping  the  way  it  all  worked.   He  was 
willing  to  let  this  new,  wet-behind-the-ears  lawyer  who  still 
didn't  know  very  much  about  what  a  water  utility  was,  he  was 
willing  to  let  me  go  and  spend  a  lot  of  time  working  on  that  kind 
of  stuff. 

And  it  was  an  enormously  valuable  education,  because  it 
forced  me  quickly  to  learn  more  about  the  utility  and  the  utility 
business,  and  it  gave  me  a  sense  of  how  the  utility  and  its 
business  related  to  the  rest  of  the  world.   I  mean,  when  we  were 
doing  these  things  on  the  CEQA  guidelines  or  the  statutory 
amendment,  or  the  FPPC  guidelines,  there  was  interaction  between 
the  lawyers  and  the  lobbyists  for  the  water  agencies,  and  the 
people  from  the  League  of  California  Cities,  and  the  California 
Supervisors  Association,  and  private  industry,  and  the  real 
estate  association,  et  cetera.   And  that's  a  great  education  in 
terms  of  how  stuff  works.   I  have  always  really  appreciated 
Reilley's  having  let  me  get  that  education.   I've  spent  way  too 
long  in  this  interview  talking  about  all  that-- 

LaBerge:   No,  this  is  fascinating,  and  it's  wonderful.   It  gives  a  bigger 
picture  of  what  the  utility  is .   I  remember  going  to  my  first 
interview  with  Mr.  Raines  thinking  that  all  we  were  going  to  talk 
about  was  water  law.   I  had  no  concept  about  everything  that  you 
have  to  do,  including  politics. 


Maddow:   Well,  I  have  a  story  about  that.   People  ask  me  a  lot  why  I 

stayed  at  East  Bay  MUD  for  as  long  as  I  did,  and  my  answer  is 
that  I'm  not  a  litigator,  but  in  the  almost  twenty-one  years  I 
was  at  the  utility  district,  I  saw  a  little  bit  of  everything. 
I'm  not  a  litigator,  but  I  was  in  court  in  everything  from  a 
criminal  law  case  to  a  divorce  case,  and  my  client  was  always  the 
utility  district.   I  don't  know  too  many  people  who  had  that  kind 
of  variety  working  in  a  public  agency,  and  in  particular,  a  water 
utility.  But  I  had  an  enormous  variety,  and  I  have  to  say,  It 
was  that  sort  of  constantly  changing  tableau  of  files  stacked  on 
your  desk  that  more  than  anything  else  made  it  an  interesting 
place  to  work.   That,  together  with  the  fact  that  we  were  working 
on  some  stuff  of  enormous  significance. 

The  other  thing  that  happened  in  the  first  month  that  I  was 
there,  besides  the  Friends  of  Mammoth  case  coming  down,  was  that 
the  legal  challenge  to  the  district ' s  American  River  contract  was 
filed.   That  also  happened  I  think  in  June  of  1972,  when  the 
Environmental  Defense  Fund  and  some  individuals  sued  the  district 
to  challenge  its  contract.   That  case  is  still  alive  today,  and  I 
know  Mr.  Reilley  would  have  talked  a  lot  about  that,  and  I  know 
you  and  I  will  also.   But  that  case  involved  sort  of  the  cosmic 
levels  of  water  law  and  water  policy,  and  that  was  all  going  on 
at  the  time — it  started  just  after  the  time  that  I  arrived  at  the 
utility  district,  and  as  I  say,  is  still  going  on  today.   It's 
one  of  the  things  that  Reilley  will  always  think  of  as  being  one 
of  the  most  important  things  he  worked  on  in  his  career,  and  I 
feel  the  same  way  in  my  career,  and  of  course,  so  does  my 
successor,  Bob  Helwick.   [tape  interruption] 

Establishing  a  Network  of  Water  Lawyers 

LaBerge:   Well,  in  working  with  the  lobbyists  and  ACWA  to  help  form  both 

the  Fair  Political  Practices  Commission  and  the  other  guidelines, 
did  you  have  to  go  up  to  Sacramento?  Who  else  did  you  work  with? 


Maddow:   Most  of  the  work  was  done  in  Sacramento.  This  was  before  we  had 
the  fax  machines,  and  so  we  used  the  mail  and  telephone.   But  we 
did  work  extensively  in  Sacramento.   In  all  three  cases—the  CEQA 
amendments,  the  CEQA  guidelines,  and  then  later,  the  Fair 
Political  Practices  Commission  guidelines --ACWA  had  as  its 
executive  director  and  general  counsel  a  man  named  John  Eraser 
[spells].   John  was  very  much  involved  in  all  of  that.  There 
were  others.  There  was  another  association,  CMUA,  and  as  I 
recall  at  that  time-- John  Fraser's  counterpart  over  at  CMUA, 
which  was  a  smaller  organization,  was  Jerry  Jordan,  as  I  recall. 
Rod  Franz  was  East  Bay  MUD's  lobbyist;  he  was  involved  in 
everything  having  to  do  with  the  legislation.   He  worked  for  John 
Plumb  [spells],  who  was  the  secretary  of  the  district.  And  so 
that  was  sort  of  the  internal  team. 

Externally,  there  were  lawyers  from  all  kinds  of  places.  A 
man  named  Bob  Jones  from  Price,  Postel  &  Parma  in  Santa  Barbara. 
Is  that  the  kind  of  name  you're  interested  in? 

LaBerge:   Yes,  and  if  you  have  any  anecdotes  about  them,  or  some  of  the 
names  that  you  gave  you  before,  like  Art  Littleworth:  was  he 

Maddow:   Art  was  involved  to  some  degree  in  these  activities.   So  was  one 
of  his  partners  at  Best,  Best  &  Krieger,  a  man  named  Dallas 
Holmes,  who  is  now  on  the  superior  court  bench  down  in  Riverside 
County . 

LaBerge:   Did  you  work  with  Jerry  Brown? 

Maddow:   No,  we  didn't  actually  have  direct  contact  with  him,  but  we  did  a 
lot  of  work  with  in  particular  Bob  Stern,  who  had  worked  for 
Jerry  Brown  in  the  secretary  of  state's  office.  Dan  Lowenstein 
and  Bob  Stern  were  in  the  secretary  of  state's  office  when  they 
wrote  Proposition  9,  the  Political  Reform  Act.   Now,  whether  they 
did  it  on  state  time  or  not,  I  don't  know,  but  it  ended  up- -you 
know,  in  the  aftermath  of  Watergate,  it  was  an  easy  thing  to 


We  had  a  fair  amount  of  contact  with  lawyers  from  up  and 
down  the  state.   For  example,  the  Metropolitan  Water  District  of 
southern  California  had  a  lawyer  named  Jarlath  Oley  [spells], 
Jarlath  had  gone  to  work  at  the  Metropolitan  at  about  the  same 
time  I  went  to  East  Bay,  and  he  was  thrown  in  in  sort  of  a 
similar  way  by  general  counsel  of  the  Metropolitan,  John  Lauten 
[spells] .  And  then  Art  Kidman,  from  a  firm  down  in  Orange 
County,  was  very  much  involved,  along  with  a  man  who's  now  his 
partner,  Russ  Behrens  [spells].   They  represented  urban  agencies 
in  southern  California.   Jim  Ganulin  [spells] ,  was  at  that  time 
the  assistant  general  counsel,  later  the  general  counsel,  of 
Westlands  Water  District,  the  biggest  of  the  Central  Valley 
irrigators.   Jim  was  involved  with  all  of  that.   Jim  was  a  former 
deputy  attorney  general,  and  so  he  had  particularly  useful 
knowledge  about  how  state  government  worked. 

LaBerge:   For  the  most  part,  did  you  all  within  the  water  lawyers  agree  as 
to  how  things  should  be,  or  did  you  have  disagreements? 

Maddow:   No,  we  had  disagreements.   Frequently,  it  was—things  were  more 
difficult  for  the  people  who  represented  agricultural  agencies, 
because  people  who  were  on  boards  of  agricultural  districts  are 
landowners,  and  therefore,  these  conflict  of  interest  issues  were 
very  difficult  for  them.  And  of  course,  in  the  environmental 
arena,  those  were  areas  that  were  far  more  conservative,  much 
less  likely  to  be  attuned  to  these  environmental  theories  and 
trends  and  all  of  that.   So  we  did  have  differences  of  opinion. 

One  of  the  things  that  really  impressed  me  was  that  there 
was  a  man  from  up  in  Oroville  named  Jack  Minasian  [spells],  who 
was  an  older  gentleman,  and  the  word  "gentleman"  should  just  be 
underscored.  He  was  a  true  gentleman.  He  became  involved  in 
some  of  the  activities  related  to  the  Environmental  Quality  Act 
amendments.   He  and  his  clients  didn't  really  understand  all  of 
that,  but  Jack  knew  that  it  was  important,  knew  he  had  to  become 
involved.   He  had  a  very  courtly  way  about  him,  and  I  can 
remember  having  these  discussions  about  how  these  new—sort  of 
newfangled  ideas --he  didn't  use  those  terms --were  going  to  work 
in  the  communities  that  he  was  familiar  with.   I  remember  those 


discussions;  they  weren't  really  debates,  but  discussions.   They 
gave  me  a  sense  of,  Gee,  what  we  know  down  here  in  the  East  Bay- 
after  all,  we  represent  places  like  Oakland  and  Berkeley  where 
you  have  sort  of  hotbeds  of  progressive  thinking — it  isn't  that 
way  everyplace  else,  and  we  have  to  make  sure  that  when  we're 
talking  about  the  community  of  water  agencies,  we  have  room  for 
both  sides  of  that  spectrum  there. 

So  you  asked  for  anecdotes:  I'll  tell  you  one.  There  was  a 
man  named  Ed  Roupal  [spells].   He  headed  an  organization  called 
the  People's  Lobby.   They  were  very  much  involved  with 
Proposition  9,  the  Political  Reform  Act,  he  and  his  wife  Joyce. 
We  were  working  hard  at  the  conflict  of  interest  issues,  and  he 
was  primarily  focusing  on  the  campaign  disclosure  stuff  as  we 
would  go  to  these  hearings  at  the  commission  on  their  proposed 
regulations.  Five  or  six  of  the  lawyers  from  the  water  community 
would  walk  in,  and  we'd  sit  together,  and  we'd  be  waiting  for  our 
agenda  item,  and  then  we'd  all  have  something  to  say. 

He  wanted  to  get  to  his  issues,  and  sometimes,  when  we  were 
debating  our  issues,  it  would  take  a  while,  and  he  wouldn't  get 
to  his  issues.  And  one  day,  he  got  very  frustrated  with  us,  and 
he  finally  stood  up.  He  interrupted  the  hearing,  and  he  said, 
"My  wife  and  I  came  here  because  we're  really  interested  in  this 
other  set  of  issues  that's  further  down  on  your  agenda,  and  we're 
sick  and  tired  of  hearing  from"--and  he  jerked  his  thumb  over  his 
shoulder  in  the  direction  of  those  of  us  sitting  over  there- - 
"we're  sick  and  tired  of  sitting  here  listening  to  the  guys  in 
the  gray  suits."  And  we  sat  there  and  we  looked,  and  sure 
enough,  every  one  of  us  had  on  a  gray  suit  that  day.   We  thought 
to  ourselves,  Oh,  my  gosh,  we're  really  typecast  now.   And  Ed 
Koupal--that  was  the  only  time  I  think  we  ever  communicated  with 

About  that  same  time,  there  was  the  head  of  the  staff  of  the 
Fair  Political  Practices  Commission,  I  guess  he  was  probably 
called  its  executive  director,  a  man  named  Rudy  Nothenberg,  who 


LaBerge:   Still  in  the  news. 

Maddow:   Still  in  the  news.  He  was  chief  administrative  officer  in  San 

Francisco,  and  now  I  think  he  heads — I've  forgotten  which  of  the 
city  commissions  or  departments.  A  lifelong  public  servant,  and 
a  very  articulate  guy  in  a  way  that  is  interesting.  He  has  an 
accent  which  I  guess  is  English,  and  he  has  a  very  rich  speaking 
voice.   I  can  remember  one  time,  I  got  up  to  make  a  presentation 
on  a  part  of  the  ACWA  pitch  on  some  aspect  of  the  conflict  of 
interest  regulations;  I  was  really  frustrated,  because  we  had 
been  debating  some  issue,  and  the  commission  had  decided  against 
us,  or  the  staff  had  argued  against  us,  or  something  like  that. 
And  I  started  in  to  my  pitch  on  the  next  issue,  and  I  think  I  got 
the  two  issues  a  little  bit  bollixed  up  or  interwoven.   I 
probably  wasn't  as  articulate  as  I  wanted  to  be,  so  I  just 
stopped.   I  was  kind  of  composing  myself  for  a  second,  and  Rudy 
Nothenberg  said,  in  his  deep,  very  beautiful  speaking  voice,  he 
kind  of  cleared  his  throat  and  he  said,  "It's  a  little  hard  for 
me  to  respond  to  that."   [laughter]   Everybody  laughed,  and  it 
broke  the  ice  of  the  moment,  and  I  went  on  with  my  presentation, 
and  it  was  just  fine. 

But  things  like  that.   We  were  having  some  pretty  difficult 
wrangles  in  those  days,  and  yet,  between  the  courtliness  of  a 
Jack  Minasian  and  the  feistiness  of  an  Ed  Koupal  and  the  style  of 
a  Rudy  Nothenberg,  I  have  to  say,  I  think  we  did  good  work.   I 
think  what  happened  with  the  Environmental  Quality  Act  and  the 
CEQA  guidelines  and  the  FPPC  guidelines,  because  of  all  that 
effort  by  a  lot  of  people  who  really  focused  on  it  back  then, 
they're  still  viable  matters  today.   I  mean,  each  of  those  sets 
of  regulations,  and  the  statutes,  and  things  we  did,  still  have 
continuing  viability,  and  they're  just  part  of  the  everyday 
routine  of  being  in  public  agency  life  any  longer.   So  as  I  say, 
that's  all  part  of  the  education. 

John  Plumb.  Jack  Knox.  Rod  Franz 

LaBerge:  Who  would  you  need  to  check  with  at  the  district  before  you  went 
to  these  meetings? 

Maddow:   Generally  Jack  Reilley.   John  Plumb,  who  headed  up  the  district's 
activities  in  the  legislature.  He  was  the  secretary  and  had  as 
his  responsibility — I  don't  remember  if  this  was  his  title — but 
he  was  sort  of  the  manager  of  the  district's  legislative  affairs. 
The  lobbyist  reported  to  him,  and  he  and  Jack  worked  very  closely 
together,  and  the  general  manager  in  those  days,  Jack  Harriett, 
knew  that  Jack  Reilley  wouldn't  do  anything  or  allow  anything  to 
happen  that  would  not  be  in  the  best  interests  of  the  utility 
district.   He  trusted  Jack  a  lot. 

•       But  John  Plumb  and  Jack  Knox  didn't  see  eye  to  eye  on  a  lot 
of  things.   I  think  that's  largely  because  John  had  spent  his 
career  kind  of  working  on  the  Republican  side  of  politics  as  it 
existed  back  then  in  the  sixties  and  the  early  seventies,  and 
Jack  Knox  was  one  of  the  leaders  of  the  Democratic  party.  There 
were  times  when  the  Contra  Costa  County  Republicans  and  Jack 
Knox,  who  was  the  leader  of  the  Contra  Costa  County  Democrats, 
the  Bert  Coffey  wing  of  the  Democratic  party,  they  crossed 
swords.   And  Jack  Knox  usually  came  out  the  winner,  so  I  suspect 
John  Plumb  and  he  didn't  see  eye  to  eye  very  often. 

I  can  remember  one  day  when  there  was  going  to  be  a  hearing 
on  A.B.  889  someplace  down  in  Los  Angeles,  and  Knox  was  flying 
down,  and  as  it  turned  out,  John  Plumb  and  I  were  flying  down  for 
the  utility  district  on  the  same  plane.  Knox  and  Plumb  had  one 
of  their  typical  sort  of  acerbic  exchanges  as  we  were  in  the 
terminal,  but  I  had  a  particular  issue  I  wanted  to  talk  to  Knox 
about,  and  I  got  the  opportunity.   I  think  Knox  had  seen  me  in 
action  a  couple  of  times,  and  I  was  able  to  talk  to  him  on  a  real 
businesslike  level,  because  I  stayed  away  from  the  politics  of 
things.   I  began  to  understand  early  on  what  lobbyists  and  so- 
called  governmental  affairs  people  did,  and  I  knew  I  didn't  do 
that  and  didn't  want  to.   So  that  was  one  of  the  times  when  I 


pretty  much  was  following  the  direction  I  got  from  Jack  Reilley, 
and  was  kind  of  given  my  head  to  try  to  accomplish  the  objective 
through  persuasion. 

One  other  aspect  of  all  of  that  that  I  think  is  interesting, 
especially  since  this  is  a  UC  effort:  Rod  Franz  was  the 
district's  lobbyist,  and  Rod  was  extremely  successful  as  a 
lobbyist.   It  was  because  he  never,  ever  told  anybody  anything 
that  was  anything  other  than  100  percent  truth.   He  never,  ever 
shaded  things.  He  wore  his  feelings  on  his  chin,  and  he  just  was 
the  nicest  guy  in  the  world.  And  here  was  this  guy,  he  was  the 
only  three-time  Ail-American  football  player  in  the  history  of 
the  University  of  California.  That  was  after  he'd  come  back  from 
World  War  II,  where  he  had- -I  don't  know  if  it  was  an  injury  or  a 
wound  or  what,  but  his  voice  box  had  been  cracked,  so  he  has  this 
real  raspy  voice.   And  Rod  is  not  an  issues  guy.   He  wouldn't  be 
the  one  who  would  go  in  and  lobby  the  issues  for  East  Bay, 
because  he  didn't  always  understand  them.   But  because  everybody 
trusted  him,  and  they  knew  that  he  would- - 

LaBerge:   Okay,  he  could  open  any  door  in  town. 

Maddow:   Right,  and  for  a  couple  of  years  on,  in  particular,  the 

environmental  law  issues  and  the  Political  Reform  Act  issues,  Rod 
would  get  the  door  open,  and  I  would  be  the  one  he'd  push 
through.   So  the  two  of  us  became  sort  of  the  spokespersons  for 
the  utility  district  on  those  issues,  and  we  were  a  good  tandem, 
good  team.   Rod  used  to  take  me  to  all  of  the  meetings  of  the 
state  legislative  committee  of  ACWA,  and  that  helped  me  again  to 
form  these  relationships  that  resulted  in  my  having  a  kind  of  a 
network  of  lawyers  with  whom  I  have  been  dealing  ever  since.   I 
still  deal  with  many  of  those  people  in  my  capacity  where  I  chair 
the  Legal  Affairs  Committee  for  ACWA,  and  it's  largely  because 
the  people  who  are  on  that  committee  are  people  whom  I  started  to 
get  to  know  back  through  those  processes  in  the  mid-seventies, 
[tape  interruption] 


Board  of  Directors 

LaBerge:  What  about  any  dealings  with  the  board  of  directors?  Did  you 

have  to  go  to  any  board  of  directors'  meetings  and  say,  "This  is 
what  I'm  doing  up  in  Sacramento,"  or--? 

Maddow:   The  utility  district  board  during  the  times  we've  just  been 

talking  about  was  a  five -per son  board,  and  the  members  of  the 
board  were  elected  at  large,  even  though  they  had  to  live  in 
individually  drawn  districts.  That's  in  direct  contrast  to  now, 
when  there  are  seven  directors  and  they  not  only  live  in  those 
districts  but  they're  elected  from  those  districts.   So  back 
then,  they  ran  in  front  of  a  million  people,  whereas  now  it's 
150,000  or  something  like  that. 

The  principal  difference  between  that  older  board  and  this 
board  is  that  older  board  looked  at  things  that  were  of  broad 
concern  to  the  whole  district.  They  didn't  ever  think  so  much 
about  my  ward  versus  somebody  else's  ward.  The  way  in  which 
matters  were  presented  to  the  board  mirrored  that.  They  did  the 
regular  business  of  the  district:  awarding  contracts  and  all 
that.   The  Political  Reform  Act  issues  or  broad  environmental  law 
issues  or  these  kinds  of  things  would  be  brought  to  them  in  the 
context  of  something  that  is  of  district-wide  concern.   And  so 
occasionally,  Jack  Reilley  would  have  me  make  a  presentation, 
usually  a  brief  one,  about  summarizing  what  was  going  on,  how 
these  issues  worked,  what  the  implications  were  for  the  utility 
district,  how  the  utility  district  was  working  with  other 
segments  of  the  sort  of  political  marketplace. 

Now,  sometimes  I'd  brief  Jack  and  he'd  do  it,  and  other 
times,  he  would  actually  have  me  become  involved.   In  those  days, 
if  you  went  to  a  utility  district  board  meeting,  you  would 
typically  see  a  lot  of  staff  there .  We  went  through  a  period 
during  my  time  at  the  district  when  that  wasn't  the  case.  We  had 
a  subsequent  general  manager  who  wanted  to  limit  the  number  of 
staff  there.   But  in  the  days  when  Jack  Harriett  was  general 
manager,  if  there  was  something  on  the  agenda  that  was  of  concern 


to  you  as  a  staff  member,  you  would  go  to  the  meeting.   So  I 
relatively  frequently  went  to  board  meetings,  developed  a  pretty 
good  sense  of  the  ebb  and  flow  of  what  happened  at  those 
meetings,  did  not  pinch-hit  for  Jack.   If  anybody- -if  Jack  was 
going  to  be  away,  or  if  he  was  ill,  Frank  would  be  the  one  who 
would  pinch-hit,  because  he  was  the  senior  person  after  Jack. 

But  Jack  gave  me  a  lot  of  assignments  on  things  that 
directly  involved  the  board  of  directors.  For  example,  in  local 
agencies,  you  always  have  to  deal  with  something  called  the  Brown 
Act,1  which  has  to  do  with  what  are  called  the  open  meeting 
requirements,  and  how  your  agenda  is  set  and  those  kinds  of 
things.  Over  the  years,  I  think  I  probably  had  more  of  those 
issues  than  the  other  lawyers  did,  and  then  in  later  years,  I  had 
them  all. 

Brown  Act  Requirements 

LaBerge:   Can  you  give  me  an  example? 

Maddow:    I'm  a  little  hard  pressed  to  think  of  a  real  specific  instance, 
so  I'll  need  to  generalize  a  little  bit.  The  Brown  Act  was 
passed  to  keep  public  agencies  from  doing  business  behind  closed 
doors .  Over  the  years ,  there  were  cases  that  came  down  that  had 
to  do  with  what  you  could  do  in  a  closed  session,  because  it  was 
an  attorney-client  privileged  matter  or  something  like  that,  and 
what  you  had  to  do  out  in  front,  what  you  had  to  put  on  your 
agenda,  that  sort  of  thing.   It's  much  more  specific  now.   The 
law  is  just  very  tightly  bound  up  in  all  these  little 

But  Jack  had  me  watch  those  areas  of  the  law,  or  maybe  he 
allowed  me  to  watch  those  areas  of  the  law.   I  can't  remember 

'A.B.  339,  1953  Reg.  Sess.,  Cal.  Stat.  ch.  1588  (1953),  Government 
Code  Sec.  54900  et  seq. 


that  he  said,  "You  do  this."  And  I  would  keep  him  advised  and 
keep  John  Plumb  advised  so  that  the  agendas  were  written  in  a 
manner  that  was  consistent  with  the  law,  and  so  that  at  the  times 
when  it  was  time  for  the  board  to  discuss  something  in  closed 
session,  you  would  check  to  be  sure  it  was  being  done  right.   It 
wasn't  anything  like  the  degree  of  intricacy  that  that  subject 
area  of  the  law  is  now,  but  it  was  something  that  had  a  lot  to  do 
with  the  way  the  board  of  directors  functioned.  Jack  let  me 
observe  all  of  that,  or  participate  in  a  great  deal  of  that. 

Helen  Burke 's  and  Ken  Simmons'  Contributions 

Maddow:   Then  in  the  mid- seventies,  there  was  a  big  change,  because  that's 
when  the  legislature  passed  the  statute  that  changed  the  East  Bay 
MUD  board  from  one  that  was  five  people  elected  district-wide  to 
seven  people  elected  ward  by  ward.   And  for  the  first  time,  we 
began  to  see,  I  guess  I  would  say,  regular  majority  and  minority 
views  on  matters  that  came  before  the  board.   It  began  right 
away,  with  the  first  election  after  the  statute  had  been  passed, 
when  a  woman  named  Helen  Burke  was  elected  to  the  board. 

Helen  had  been  a  critic  of  the  district.   She  was  an 
official  with  the- -not  an  official.   She  was  involved  with  the 
Sierra  Club.  At  that  time,  I  don't  know  whether  she  held  an 
official  position  or  whatever.   But  she  was  elected  from  the 
Berkeley  ward,  and  frequently  disagreed  with  the  majority  of  the 
board  on  a  number  of  issues. 

For  example,  in  1972,  the  litigation  had  begun  over  the 
implementation  of  the  American  River  water  supply  contract.   She 
sided  with  the  people  who  were  opposing  the  district's  efforts  to 
develop  that  contract.  They  were  people  whom  she  knew  through 
various  environmental  organizations.   In  particular,  a  woman 
named  Jean  Siri  [spells],  who  was  one  of  the  four  individuals  who 
was  an  individual  named  plaintiff  in  that  case.   She  and  Helen 
Burke  were  friends,  and  political  colleagues,  that  sort  of  thing. 


Jean  Sir!  later  served  on  the  city  council  in  El  Cerrito  and  has 
done  a  number  of  things  in  political  life.  Her  husband,  Dr.  Will 
Siri,  was  one  of  the  founders  of  the  Save  the  Bay  Association. 
[Jean  Siri  later  was  elected  to  Board  of  EBRPD] . 

LaBerge:  Okay,  that  sounds  familiar. 

Maddow:  I  think  you've  done  some  things  on  them.1 

LaBerge:  Yes. 

Maddow:  He  was  very  much  involved  with  the  creation  of  the  BCDC. 

Anyway,  Helen  was  frequently  at  odds  with  the  rest  of  the 
board.   I  was  the  lawyer  who  I  think  she  maybe  developed  the 
ability  to  communicate  with  more  so  than  the  others.  And  I  think 
that  she  saw  Jack  as  being  the  board's  lawyer,  and  me  as  being  a 
lawyer  who  worked  for  Jack  to  whom  she  could  talk  a  little  more 
easily.   She  might  not  see  it  that  way  or  say  it  that  way,  but  I 
always  had  the  feeling  that—she  didn't  always  like  what  I  had  to 
say,  but  she  talked  more  easily  to  me  than  she  did  with  Jack,  on 
some  things . 

Early  on,  when  the  Environmental  Defense  Fund  had  brought 
this  litigation  against  the  district,  Jack  was  handling  the  case. 
I  was  not  really  on  point  in  the  litigation,  although  I  did  some 
writing  and  some  of  the — that  case  was  all  done  on  the  papers  in 
the  early  days.   It  wasn't  being  tried  in  the  courtroom  at  all. 
That  came  much  later.   I  had  something  to  do  with  the  papers 
early  on;  we  all  had  a  piece  of  it.   But  it  was  Jack's  case. 

But  occasionally,  as  environmental  law  was  kind  of  getting 
started  here,  there  were  various  and  sundry  meetings  that  I  would 
want  to  go  to  on  behalf  of  the  utility  district  so  I'd  know  what 

'See  William  E.  Siri,  "Reflections  on  the  Sierra  Club,  the 
Environment,  and  Mountaineering,  1950s- 1970s, "  an  oral  history  conducted 
1975-1977,  Regional  Oral  History  Office,  University  of  California, 
Berkeley,  1979. 


was  going  on,  and  Jack  would  say  okay.  And  I  got  to  know  Tom 
Graff,  who  was  the  Environmental  Defense  Fund  attorney- -whom  you 
know,  of  course.1 

LaBerge:   Yes. 

Maddow:   And  a  man  named  Dick  Gutting  [spells],  who  was  in  those  days  in 
the  fund.   I  early  on  developed  the  ability  to  communicate  with 
people  in  these  organizations,  even  though  they  didn't 
necessarily  agree  with  anything  I  was  representing  or  anything 
like  that,  but  at  least  we  could  communicate.  And  I  think  Helen 
respected  that.   Even  though,  as  I  say,  I  don't  think  she  liked 
what  I  said  all  the  time,  I  think  that  she  knew  that  I  would 
never  deceive  her,  that  I  was  going  to  play  as  straight  with  her 
as  I  would  with  anybody  else  on  the  board,  and  I  think  we  formed 
reasonably  healthy  mutual  respect.   I'd  like  to  think  that  still 
continues  today,  although  I  haven't  really  seen  her  in  quite  some 
time.   But  she's  been  gone  from  the  East  Bay  MUD  board  for  a 
while.   I've  had  a  couple  of  contacts  with  her  since  then.   I 
always  respected  her  for  her  having  the  courage  of  her 
convictions,  even  in  the  days  when  she  was  one  of  seven,  and  when 
the  others  were  unwilling  to  be  very  accepting  of  her.   I  think 
Helen  did — she  didn't  win  a  lot  of  votes,  but  in  her  way,  she  won 
a  lot  of  battles.   I  think  that  her  coming  on  the  East  Bay  board 
was  a  very  healthy  thing.   I  think  East  Bay  has  been  far  better 
off  in  the  years  since  the  mid-seventies  than  a  lot  of  other 
agencies  from  the  standpoint  of  East  Bay's  sensitivity  to 
environmental  considerations,  for  example. 

Another  person  who  came  to  the  East  Bay  board  about  then  was 
a  man  named  Ken  Simmons,  who's  still  there.   Ken  was  the  first 
black  to  come  on  that  board.  Ken  brought  the  initial  round  of,  I 
guess  I  would  say,  really  serious  concerns  about  diversity: 
diversity  of  the  workforce,  diversity  of  the  way  in  which  the 

'See  Thomas  J.  Graff  and  David  R.  Yardas,  "The  Passage  of  the  Central 
Valley  Project  Improvement  Act,  1991-1992:  Environmental  Defense  Fund 
Perspective,"  an  oral  history  conducted  in  1994  by  Malca  Chall,  Regional 
Oral  History  Office,  The  Bancroft  Library,  University  of  California, 
Berkeley,  1996. 


utility  district  does  its  contracting  for  supplies  and  services 
and  what  have  you.   I  have  thought  since  early  on  when  I  got  to 
know  him  that,  of  the  directors  that  I  knew  at  East  Bay,  he  was 
the  smartest,  but  unfortunately,  he  was  not  as  interested  in  East 
Bay  MUD  as  he  was  in  the  many  other  things  he  was  doing.  He  was 
a  faculty  member  at  the  University  of  California  and  had  his  own 
architectural  firm  and  things  like  that.  But  he  was  smart,  and 
when  he  put  his  mind  to  it,  he  could  just  be  terrific  as  a 
director,  as  a  problem- solver,  as  somebody  who  could  get  through 
whatever  the  political  or  technical  or  administrative  details 
were.   He  always  seemed  to  be  able  to  do  it.   It's  just  that  he 
didn't  do  it  as  often  as  I  would  have  liked  to  have  seen,  because 
he  was  so  good. 

But  as  I  say,  what  he  brought  to  the  board  that  was  unique 
was,  for  the  first  time,  causing  the  district  to  really  have  to 
face  up  to,  both  literally  and  figuratively,  face  up  to  issues  of 
diversity.   I  think  that  Ken  Simmons  brought  some  just  invaluable 
traits  and  characteristics  and  thought  processes  to  the  utility 
district.   And  there  too,  I  think  that  the  district  has  profited 
by  having  had  somebody  like  him.   Just  in  the  same  way  that  Helen 
Burke  broke  the  ice  in  so  many  ways,  he  broke  the  ice  in  so  many 
other  ways.   Split  votes  are  healthy  things,  and  having  that 
loyal  minority,  or  that  other  side  of  questions,  that  sort  of 
thing:  that's  how  you  grow,  as  an  institution. 

So  I  was  real  fortunate  to  be  able  to  see  that  from  sort  of 
an  inside  position  and  to  work  with  those  people.   They  didn't 
look  to  me  for  political  considerations  in  regard  to  the  issues 
they  were  involved  with;  they  looked  to  me  for  legal 
considerations.   They  knew  that,  and  I  knew  that,  and  sometimes, 
I  had  to  say--I  can  remember  sometimes  hearing  Jack  Reilley  say, 
"The  legal  considerations  here  are" — as  opposed  to  the  political 
considerations  that  are  somebody  else's  to  worry  about.   So  a 
great  education,  to  be  there  at  that  time  when  that  set  of 
changes  took  place. 

Change  in  Board  Elections 

Maddow:   Now,  I  have  to  say  there  is  a  flip  side  to  it  because  I  believe 
that  when  the  utility  district  board  changed  from  a  five-person 
board  to  a  seven-person  board,  in  addition  to  it  becoming 
modernized  to  some  aspects  of  what  I  would  consider  to  be  more 
progressive  thinking  than  might  otherwise  have  happened,  the 
district  lost  the  ability  to  some  degree  to  focus  on  the  big 
issues  of  broadest  concern  district-wide.   It's  not  that  they 
didn't  understand  the  issues;  they  knew  that  they  were  there. 
But  the  people  who  became  the  directors  of  the  utility  district 
after  it  changed  to  ward  by  ward  elections  were  people  who  seemed 
to  be  focused  more  on  the  election  process  and  election-related 
issues,  that  were  usually  more  focused  on  their  individual  ward, 
than  on  looking  at  the  broader  view. 

Big  water  supply  projects  are  not  done  in  four-year 
increments,  they're  done  in  twenty-year  increments  or  thirty-year 
increments,  or  hundred-year  increments.   You've  got  to  be  able  to 
take  that  real  long  view  in  order  to  succeed  with  the  kinds  of 
things  that  the  utility  district  had  done  in  the  first  fifty 
years  of  its  existence.  And  some  of  that  was  lost  when  people 
came  to  the  board  with  more  of  a  focus  on  their  individual  ward, 
and  what  it  would  take  to  become  elected  or  reelected  there,  or 
who  would  their  successor  be,  et  cetera. 

I'm  not  saying  one  system  was  right  and  the  other  was  wrong. 
But  what  I  am  saying  is  that,  from  the  standpoint  of  the 
direction  of  the  institution,  and  what  it  takes  to  be  truly  a 
leader  of  that  institution,  that  kind  of  institution,  that 
statutory  change,  from  a  five-person  board  elected  at  large  to  a 
seven-person  board  elected  by  ward,  was  like  night  and  day.   It 
was  relatively  easy  with  the  five-person  board,  once  they  were 
convinced  that  they  ought  to  go  in  a  certain  direction,  to  keep 
them  going  in  that  direction.   With  a  seven-person  board,  getting 
them  to  focus  on  what  that  big  issue  was  and  remain  focused  on  it 
was  harder,  because  those  seven  directors  had  more  pressures  on 


them  in  the  limited  time  that  they  had  to  devote  to  utility 
district  matters . 

In  the  days  prior  to--in  the  fifties,  for  example,  the 
utility  district  had  to  do  something  big  and  important,  because 
the  first  phase  of  the  development  of  the  utility  district  all 
swirled  around  the  water  rights  that  they  filed  for  in  1924. 
That  project  that  they  built  in  the  twenties  was  built  way  bigger 
than  they  thought  would  really  be  necessary  for  a  long  time,  but 
it  wasn't  nearly  as  big  as  what  the  need  turned  out  to  be, 
because  along  came  World  War  II.  And  so  as  soon  as  the  war  was 
over,  they  went  back  and  built  the  second  barrel  of  the 
[Mokelumne]  aqueduct.  And  in  1949,  they  filed  the  second  water 
rights  application.  The  big  thing  that  happened  in  the  fifties 
was  to  build- -to  lay  the  foundation  for  what  became  the  second 
leg  of  the  East  Bay  project — you  know,  the  Camanche  Reservoir, 
the  second  set  of  water  rights,  all  those  things  that  Harold 
Raines  and  Jack  Reilley  were  so  much  responsible  for.   They  had 
real  leadership  then,  coming  from  the  board  of  directors  and 
coining  from  managers,  all  of  whom  were  able  to  focus  in  sort  of 
the  old  traditional  way  on  how  you  did  these  things. 

Those  were  the  days  when  the  utility  district  board  knew  it 
had  to  go  to  the  voters  to  get  a  bond  passed,  a  bond  issue 
approved.   And  so  they  did  it  in  the  old-fashioned  way:  utility 
district  managers  became  officers  in  the  local  service  clubs, 
they  went  to  the  chamber  of  commerce;  you  made  the  rounds,  you 
put  together  a  committee  of  leading  citizens.   There  was  a 
retired  admiral  named  Earl  Hipp  who  headed  up  this  committee, 
I've  forgotten  what  they  were  called.   They  put  together  the  'Big 
M"  project  to  build  the  third  aqueduct  and  to  build  Camanche 
Reservoir  and  all  of  that.  It  was  the  kind  of  project  that 
emanated  from  the  downtown  business  leaders  and  civic  leaders  and 
the  chamber  of  commerce,  and  those  were  the  kinds  of  people  who 
were  on  the  East  Bay  MUD  board.   They  were  all  business  people. 

In  the  seventies,  things  changed.   And  so  when  it  came  time 
to  do  something  about  the  American  River  project  in  the  seventies 
and  on  into  the  eighties,  you  didn't  have  that  sort  of  focused, 


sort  of  business  community,  chamber  of  commerce-type — that  had 
all  become  much  more  fragmented  over  time.  And  within  the 
utility  district,  you  had  a  couple  of  choices  as  to  where  you 
were  going  to  get  that  kind  of  leadership.  You  might  get  it  from 
the  board,  or  if  you'd  have  a  board  that  isn't  going  to  provide 
it,  then  you  might  have  to  get  it  from  a  real  strong  general 

Role  of  the  General  Manager 

Maddow:   Mr.  Harriett  was  from  the  old  school  of  general  managers,  and 

probably  would  not  have  been  allowed  to  step  out  and  become  the 
real  champion,  the  real  leader,  the  real  visionary,  for  the 
utility  district,  because  it  wasn't  as  necessary  and  it  would 
have  been  seen  as  being  sort  of  out  of  character  for  the  utility 

Then  the  board  changed.  Mr.  Harnett  was  still  there,  and  he 
was  doing  his  darnedest  to  make  sure  that  the  utility  district 
stayed  on  track,  in  spite  of  all  these  changes  that  were  going 
on,  and  there  were  lots  of  other  pressures  on  the  district  as 

When  Mr.  Harnett  left  in  1980,  I  guess  it  was,  and  Mr. 
[Jerry]  Gilbert  came  in  1981,  Gilbert  was  a  guy  who  had  done  big 
things  in  the  water  business,  and  suddenly  here  was  a  general 
manager  who  was  willing  and  able  to  be  the  big  thinker,  the 
visionary,  to  fill  the  vacuum  that  was  left  by  the  changing 
pattern,  changing  events  that  went  way  back  to  the  sixties  when 
the  utility  district  had  built  the  Big  M  project.   Gilbert  came 
in  and  tried  to  be  that  real  strong  leader.   He  needed  to 
mobilize  the  support  of  the  board.   He  could  never  get  the  whole 
board.   The  board  was  always  divided.   And  so  his  efforts  were 
not  totally  successful.   And  now,  I  don't  know  enough  about  the 
utility  district  to  know  where  that  vision  comes  from,  where  that 
leadership  comes  from  today.   I  don't  know  if  it  comes  from 


within  the  management,  or  within  the  board,  or  a  combination  of 
them,  or  whether  it  exists  at  all. 

But  I'm  convinced,  from  what  I've  seen  from  all  the  history 
I've  read,  that  unless  you've  got  some  sense  of  what  that  vision 
is  and  some  sense  of  what  that  big  institutional  objective  is, 
it's  hard  to  move  the  institution  in  any  particular  direction. 
It's  ever  so  much  harder  now,  because  of  all  the  legal 
entanglements  and  public  policy  entanglements  that  institutions 
like  this  have  to  deal  with.   So  from  a  public  policy  standpoint, 
it's  a  much  tougher  world  in  which  to  solve  the  kinds  of  problems 
that  the  utility  district  has  been  confronted  with  over  the 
years.   If  you  were  to  try  in  the  nineties  to  build  what  the 
utility  district  built  in  the  twenties  or  the  forties  or  the 
sixties,  I  don't  think  you  could  do  it.  What  you  would  do  in  the 
nineties  is  to  build  something  that  would  be  a  substantially 
different  institution,  if  you  could  do  it.   It  would  be  kind  of 
like  watching  the  efforts  to  build  the  new  Bay  Bridge .   It ' s 
going  to  be  a  lot  different  than  the  effort  to  build  the  one 
that's  there  now. 

Bert  Carrington  and  Other  Directors 

LaBerge:   Yes.   You  once  mentioned  one  of  the  old  board  members,  Mr. 

Maddow:   Mr.  Carrington  was  one  of  the  really  interesting  people  at  East 
Bay,  and  I  hope  that  Jack  or  Harold  Raines  talked  about  him. 

LaBerge:   No,  they  didn't,  so  I'd  like  you  to. 

Maddow:   When  I  came  on  the  board,  there  were  two  very  elderly  gentlemen 
on  the  board.   Bert  Carrington- -his  initials  were  A.  C. 
Carrington,  I  don't  know  what  A.  or  C.  stood  for,  but  everybody 
called  him  Bert.   I  think  he  served  on  the  board  for  more  than 
thirty  years,  and  I  don't  think  he  started  until  he  was  past 


sixty.  When  he  left  the  board,  I  believe  he  was  the  oldest 
living  elected  official  then  serving  in  the  United  States.  He 
was  well  into  his  nineties. 

He  had  been,  I  think,  the  owner  or  perhaps  the  president  of 
a  chocolate  company.  I  think  it  was  called  Baylor's  [spells] 
Chocolate,  which  was  an  old  Oakland  firm.   I  don't  think  it 
exists  any  longer.   I  imagine  he  was  probably  appointed  to  the 
board- -that's  the  way  it  worked  back  in  the  old,  old  days,  sort 
of  the  business  people  would  appoint  people  they  knew. 

He  was  an  interesting  man,  because  when  I  first  met  him  in 
1972,  he  was  almost  totally  blind.  His  wife,  as  I  understood  it, 
would  read  the  materials  to  him  that  were  sent  to  him  by  the 
district.  He  would  come  to  board  meetings,  and  he  wouldn't 
always  have  a  great  deal  to  say,  but  when  he  said  something,  he 
was  obviously  dealing  from  insightful  knowledge  and  from  sort  of 
a  business  person's  sense  of  things.   Even  though  he  was  blind, 
he  was  very  sharp.   There  was  someone  from  the  district  staff  who 
would  go  and  pick  him  up  and  bring  him  to  the  meetings,  and  make 
sure  he  got  home  safely.   After  Mrs.  Carrington  became  ill  and 
eventually  passed  away,  I  think  a  district  person  would  actually 
do  some  of  the  reading  to  him  so  that  he  could  continue  to 
function.   I  think  he  was  on  the  board  until  he  was  ninety- four, 
something  like  that. 

Now,  Howard  Robinson  was  an  insurance  executive.   He  served 
a  similarly  long  period  of  time,  something  on  the  order  of  thirty 
years.  He  didn't  speak  out  as  much  as  Mr.  Carrington  did  in  the 
board  meetings  that  I  can  remember  attending,  but  I  do  recall  one 
time,  there  was  a  contract  that  was  coming  before  the  board,  and 
there  was  something  odd  about  it.   I  frankly  don't  remember  what 
it  was .   But  there  was  a  question  about  whether  a  contractor 
could  be  either  allowed  to  walk  away  from  its  bid,  or  allowed  to 
make  a  change  for  some  reason  midstream  in  the  contract.  Oh,  I 
know  what  it  was.   It  had  to  do  with  the  purchase  of  chemicals 
that  were  used  in  the  water  treatment  process.   I  think  the 
particular  chemical  was  lime.   The  refinement  process  that  was 
used  for  the  lime  that  was  purchased  by  the  district  for  use  in 


its  treatment  plants  involved  heat.   I've  forgotten  just  what 
year  it  was,  but  I  think  it  was  '73  when  we  had  the  first  Arab 
oil  embargo,  and  the  price — 

LaBerge:  That  sounds  right. 

Maddow:   — and  the  price  of  oil  shot  upward.  This  contractor  begged  for 
relief  from  the  firm,  fixed  price  it  had  quoted,  because  it 
couldn't  possibly  stay  in  business  at  that  price.   I  was  asked 
whether  there  was  a  legal  theory  under  which  that  could  be 
accomplished.   I  remember  doing  a  lot  of  research,  and  finding 
some  theories,  and  putting  something  together  that  Jack  was 
satisfied  with,  and  finally,  it  came  time  for  that  matter  to  go 
before  the  board.   It  was  being  presented  to  the  board,  and  I 
can't  remember  whether  it  was  Jack  who  asked  me  to  answer  the 
questions  or  the  staff  person,  I  just  don't  recall  that.   But  I 
had  to  stand  up  and  offer  these  legal  theories  to  the  board. 

Howard  Robinson  was  a  stickler  for  procedure,  and  for 
business  people  sticking  by  their  word.   We  ended  up  with,  as  I 
recall,  a  four- to-one  vote  in  favor  of  granting  the  relief  that 
this  contractor  had  sought,  that  the  staff  wanted  to  give,  for 
which  I'd  found  a  legal  theory  that  would  work,  and  Howard 
Robinson  would  have  none  of  it,  and  he  voted  no.   I  can  remember 
people  coming  up  to  me  afterwards  and  saying  that's  the  first 
time  that  they  could  remember  in  all  the  years  that  Mr.  Robinson 
had  been  on  the  board  that  there  had  been  a  split  vote  where  he 
was  the  only  one  in  the  minority,  and  it  was  all  on  this  matter 
of  principle.   And  "Maddow,  you've  achieved  something."  And  I 
can  remember  saying  to  somebody,  "Yes,  but  I  don't  know  if  it's 
good  or  bad."   [laughter]   So  that  one  kind  of  sticks  out  for  me. 

There  was  another  man  on  the  board  then  named  Bob  Nahas 
[spells],  who  is  best  known  around  here  because  of  the  Coliseum. 
He  was  the  person  who  was  the  major  thinker  in  terms  of  putting 
together  the  Oakland-Alameda  County  Coliseum.   He  was  a 
developer,  he  developed  the  Orinda  Woods  complex,  and  he's  done  a 
number  of  other  things  like  that,  shopping  centers  and  things 
like  that.   He's  a  fascinating  man.   Many,  many  years  later,  my 


daughter  won  a  scholarship  called  the  Nahas  Scholarship  when  she 
was  graduating  from  high  school  and  going  off  to  college.   I 
happened  to  have  an  opportunity  to  talk  to  him  after  that,  and  I 
reminded  him  that  he  was  the  person  who  made  the  motion,  as  I 
recall,  that  resulted  in  my  being  hired  by  East  Bay  MUD.   It  had 
to  be  a  board  appointment.  Maybe  he  didn't  make  the  motion,  but 
he  was  the  one  who  spoke  up  at  the  meeting.  And  I  remember  him 
looking  out  at  me  and  saying,  "Now,  Mr.  Maddow,  I  want  you  to 
make  sure  you  keep  us  out  of  jail."  And  I  said,  "I'll  try,  Mr. 
Nahas , "  and  that  was  it .  Here  I  was ,  shaking  in  my  boots ,  not 
knowing  what  was  going  on. 

But  Bob  Nahas  was  another  one  of  those  big  thinkers  who  East 
Bay  MUD  was  fortunate  to  have  on  its  board  for  a  while.   I  can 
remember  that  there  was  a  time  when  there  was  discussion  about 
implementation  of  the  district's  American  River  water  service 
contract,  and  it  was  clear  that  it  was  going  to  be  a  very  long 
time  before  it  would  be  built,  the  facilities  to  bring  in  the 
water  would  be  built,  and  yet,  the  district  had  to  start  paying 
for  the  water  under  what's  called  a  "take  or  pay"  contract. 
Somebody,  one  of  the  environmental  organizations,  got  up  and 
started  talking  about  that,  and  Bob  Nahas  said,  "If  we  didn't 
take  this  water  until,"  and  then  he  said  some  date,  I  don't 
remember  what  it  was,  "how  much  would  we  have  paid  out  prior  to 
the  time  we  started  taking  any  water?"  And  the  staff  had  done 
the  analysis,  and  it  was  millions  and  millions  of  dollars.  And 
he  said,  "That  is  absolutely  dirt  cheap,  given  the  insurance  that 
that  the  contract  will  provide . " 


Maddow:    [Bob  Nahas]  was  willing  to  think  about  what  was  going  to  happen 

twenty  or  thirty  years  down  the  road,  and  I  think  that  that  was  a 
valuable  type  of  thinking.  He  was  the  big  thinker  type  guy  who 
used  to  be  on  boards  like  this,  and  I  think  that  that  was  real 

I've  spent  a  lot  of  time  on  that,  Germaine;  I  think  it's 
time  for  you  to  give  me  another  question. 


Affirmative  Action 

LaBerge:  Okay.  Well,  just  talking  about  Ken  Simmons  brought  up  just  the 
issue  of  affirmative  action.   One  of  the  dates  I  have  is  '75, 
voluntary  affirmative  action? 

Maddow:   Yes. 

LaBerge:  Do  you  remember  how  that  came  about,  and  was  that  before  Ken 
Simmons  was  on  the  board? 


Maddow:    I  believe  it  was  before  Ken  came  on  the  board.   If  I  am  not 

mistaken,  Ken  came  on  the  board  in  '76  or  in  '78.   I  think  it  was 
'78.  I  should  remember  that. 

LaBerge:   We  can  check  that  date. 

Maddow:   The  district  had  already  moved  in  the  direction  of  a  voluntary 

affirmative  action  program — and  this  was  in  regard  to  employment 
— establishing  employment  objectives  in  terms  of  what  I  guess  we 
would  now  call—well,  I  guess  even  then  it  was  an  affirmative 
action  principle.   But  the  district  began  to  look  at  the 
distribution  of  women  and  people  from  ethnic  minorities 
throughout  the  workforce,  and  concerns  about  that  issue  were 
obviously  going  to  exist  in  a  community  in  the  East  Bay  in  the 
sixties  and  seventies.  They  began  to  be  recognized.  The 
district  had  a  human  resources  department  that  was  pretty  good, 
and  I  think  this  was  happening  to  some  degree  spontaneously  and 
to  some  degree  because  there  were  workers  within  the  workforce 
who  were  concerned.   There  were  broader  political  pressures  in 
regard  to  these  kinds  of  issues. 

LaBerge:  Well,  I  know  it  was  out  in  the  world. 
Maddow:   Absolutely. 

LaBerge:   For  instance,  Bank  of  America  was  picketed,  and  a  couple  of  other 
large  companies,  so-- 


Maddow:   I  can't  really  put  my  finger  on  the  genesis  of  it  at  East  Bay, 

but  I  can  tell  you  that  these  efforts  had  begun  prior  to  the  time 
that  Ken  Simmons  came  on  the  board.   Ken  was  sort  of  the 
principal  ramrod  of  not  only  making  these  efforts  but  increasing 
them,  stiffening  them,  and  expanding  into  other  areas.  For 
example,  Ken  more  than  anyone  else  was  responsible  for  the 
affirmative  action  efforts  of  the  utility  district  in  regard  to 
contracts  for  materials  and  supplies  and  services.  The  utility 
district  early  on,  in  relationship  to  lots  and  lots  of  other 
agencies,  was  very  active  in  those  areas,  and  has  been  able  to — I 
think  has  had  a  remarkable  track  record  in  terms  of  bringing 
minority  and  women-owned  businesses,  disadvantaged  businesses, 
into  sort  of  the  mainstream  of  the  district's  work. 

And  it's  happened  in  a  lot  of  ways.   I  remember  during  the 
time  that  the  risk  manager  reported  to  me  while  I  was  general 
counsel,  he  went  out  on  his  own  and  in  effect  developed  a 
minority  insurance  brokerage  firm.   What  he  did,  he  found  a 
commercial  lines  insurance  firm  in  the  East  Bay  that  was  owned  by 
a  black  family.   Actually,  my  recollection  is  it  was  a  man  and 
his  brother  and  the  daughter  of  one  of  those  men.   They  did 
commercial  lines  insurance  for  small  businesses,  but  they  had 
never  done  anything  on  the  scale  of  the  kind  of  insurance  that 
East  Bay  MUD  buys,  which  is  pretty  sophisticated  stuff.  And  the 
fellow  who  was  the  risk  manager  then  and  is  now,  Tom  Nordin 
[spells],  he  knew  that  a  firm  like  that  couldn't  take  the  place 
of  the  big  commercial  lines  insurance  brokers  the  district  was 

But  what  he  did  was  to  get  this  firm  moving  in  a  direction 
where  they  kind  of  educated  themselves ,  and  came  in  as  a 
subcontractor  sort  of,  almost  like  on-the-job  training,  working 
with  the  big  firm.  Tom  worked  at  carving  out  certain  of  the 
tasks  that  had  to  be  accomplished  by  the  broker,  and  sort  of 
earmarking  them  for  the  minority  subcontractor  at  the  beginning, 
and  later  joint  venturer,  if  you  will. 

That  was  the  kind  of  thing  that  a  lot  of  people  at  East  Bay 
worked  hard  at,  because  they  knew  the  institution  had  this 


commitment,  and  they  knew  that  their  own  success  as  a  district 
manager  depended  upon  their  meeting  the  district's  objectives, 
standing  up  for  the  district's  commitments,  et  cetera.  And  we 
had  real  good  people  who,  regardless  of  whether--!  don't  know 
this,  but  it  wouldn't  surprise  me  to  find  out  that  some  of  the 
people  were  doing  this  against  their  own  personal  views  or 
values.  But  they  were  committed  to  it,  because  the  institution 
not  only  made  it  the  institutional  objective,  but  it  looked  at 
its  individual  employees  and  said,  "We're  going  to  gauge  your 
performance  on  how  well  you  measure  up  to  those  institutional 

goals  and  ob j  ectives . " 


You  find  that  in  the  private  sector  a  lot  more  than  you  do 
in  the  public  sector,  and  that  was  one  of  the  things  that 
happened  at  East  Bay  in  the  whole  area  of  affirmative  action, 
both  in  the  workforce  and  for  contractors.  It  was  with  Ken 
Simmons  being  the  ramrod.   I  give  him  a  lot  of  credit  for  that, 
because  sometimes,  he  too  was  out  there  all  by  his  lonesome,  and 
he's  a  very  bright  guy  and  has  been  a  very  valuable  director  in  a 
lot  of  ways,  even  though  there  are  those  who  will  be  critical  of 
him  because  he  wasn't  always  there.   He  wasn't  always  as 
committed.   There  were  many  times  when  he  would  sit  out  the 
debate,  and  he  wouldn't  go  to  meetings  and  things  like  that. 
Because  he's  a  busy  guy,  pulled  in  a  lot  of  directions.   But  when 
he  was  there,  boy,  was  he  effective. 

LaBerge:  Well,  who  else  was  involved,  though?  Because  if  in  fact  the 
district  really  had  this  policy,  a  lot  of  you  must  have  been 
behind  it. 

Maddow:   Yes.   Frank  Howard  was  very  much  involved  from  the  legal 

perspective  and  did  a  lot  of  good  work.   Frank  really  believed  in 
this  stuff.   Frank's  wife  was  an  attorney  who  had  not  had  the 
easiest  time  practicing  her  profession,  because  there  weren't 
very  many  women  attorneys  around  in  those  days ,  and  Frank 
recognized  that.   I  think  that  had  a  bearing  on  his  thinking. 

There  was  a  man  named  Jay  Smiley,  who  was  the  head  of  the 
personnel  department  for  much  of  that  time.   He  had  a  man  who 


worked  for  him  who's  dead  now  named  Norm  Schwab  [spells].  They 
really  believed  in  these  things.  The  district  hired  a  woman 
named  Jean  Love  Smith  to  be  its  affirmative  action  officer  I 
think  around  '75  or  '76.   I  took  my  hat  off  to  her  when  I  first 
met  her,  and  I  continued  to  for  the  whole  time  she  worked  for  the 
district,  because  she  was  the  one  who  had  to  go  out  there  to  the 
East  Bay  MUD  field  forces  where  you  had  construction  people  who 
had  always  done  it  their  way,  and  she  said,  "When  you're  making  a 
hiring  decision,  you're  supposed  to,  all  things  being  equal,  take 
the  person  who  looks  like  people  who  you've  never  taken  before." 

We  didn't  have  quotas,  we  didn't  have  the  things  you 
couldn't  have.   What  we  had  were  programs  that  were  built  on 
jawboning  and  establishment  of  objectives  and  doing  our 
darnedest,  and  that's  the  hardest  kind  of  program  to  run.  And 
Jean  Love  Smith  was  the  person  who  really  fought  the  hard  fight. 
She  was  the  district's  affirmative  action  officer;  she  was  sort 
of  ombudsperson  for  people  who  had  a  problem,  be  it  because  they 
were  black  and  weren't  getting  consideration  they  thought  they 
should,  or  female,  or  whatever  it  was.   She  got  right  down  in  the 
trenches  and  fought  some  of  the  real  hard,  lonely  fights.   In  her 
quiet  way,  she  was  a  very  gracious  person  and  a  quiet  person,  but 
who  could  shout  when  she  needed  to.   She  really  is  owed  a  great 
deal  of  credit. 

I  also  think,  though,  that  you  have  to  give  a  lot  of  credit 
to  the  people  who  were  at  the  top  of  the  organization,  because  it 
goes  back  to  Jack  Harnett  and  it  went  through  Jerry  Gilbert,  and 
I  think  every  other  person  I  know  who  has  occupied  that  chair. 

I  don't  know  what  any  of  those  people  thought  about  in  their 
personal  beliefs  about  equality  in  the  workforce  and 
nontraditional  employment  and  all  those  kinds  of  things.   But 
they  were  willing  to  put  themselves  on  the  line  for  those  issues, 
because  it  had  become  what  East  Bay  MUD  did. 

Settling  a  Lawsuit 

Maddow:   During  my  tenure  as  general  counsel,  we  fought  the  hardest  fight 
about  all  that  stuff,  I  think.  There  was  a  case  that  actually 
began  before  I  became  general  counsel,  but  it  matured  while  I  was 
there.  There  were  two  black  employees,  a  man  named  Frank  Erving 
[spells]  and  Stan  Mclntosh.  They  had  brought  a  lawsuit  against 
the  district  alleging  that  they  had  been  discriminated  against  on 
the  basis  of  race  in  regard  to  job  opportunities.   They  were  in 
the  workforce,  and  they  alleged  that  they  were  still  at  the  lower 
reaches  of  the  workforce,  in  spite  of  the  fact  that  they  were  as 
qualified,  or  they  even  alleged  that  they  perhaps  were  better 
qualified  than  others.  And  they  in  effect  alleged,  I  guess  I 
would  call  it,  institutionalized  discriminatory  practices. 

The  case  didn't  look  like  much  at  the  beginning,  because  it 
wasn't  very  actively  litigated.   But  then  it  took  on  significant 
proportions  later  on.   They  hired  an  attorney  named  Todd  Withy 
[spells],  who  was  sort  of  a  classic  civil  rights  attorney.   He 
was  a  big,  tall,  angular  guy  who  I  think  had  grown  up  in 
Berkeley,  and  who  always  had  a  smile  on  his  face,  and  by  golly, 
he  was  going  to  change  things.  And  he  did,  he  was  very  effective 
in  his  way. 

They  were  able  to  show  on  a  statistical  basis  that  there  was 
enough  of  a  track  record  to  allow  an  inference  to  be  drawn  that 
in  fact,  there  could  have  been  discriminatory  practices  or 
policies  or  procedures  or  something.   They  didn't  prove  it.   It 
would  have  been  difficult  to  disprove.   It  was  very  intricate  and 
very  hard  stuff. 

What  we  ended  up  doing,  when  we  realized  where  we  were  in 
that  case,  was  to  say,  "We  think  we  could  win  at  trial,  but  it 
will  be  ugly,  and  it  will  be  divisive.   We  could  lose  at  trial, 
and  that  might  be  even  uglier  and  more  divisive.   That's  sort  of 
a  Hobson's  choice,  and  maybe  the  better  thing  to  do  is  to  find  a 
way  to  resolve  this  case  without  getting  to  that  endpoint  that 
says,  Yes,  by  golly,  there  was  fire  indicated  by  that  little  bit 


of  smoke,  or  No,  by  golly,  it  was  a  puff  of  smoke  and  there  was 
no  fire."  I'm  still  convinced  that  if  you  had — you  see,  East  Bay 
MUD  is  a  pretty  big  organization,  but  it's  not  anything  like  the 
state  government  or  the  federal  government  or  something.  And  so 
you  can  find  that  there  will  be  one  or  two  incidents  that  might, 
from  a  statistical  standpoint,  end  up  taking  on  enormous 
significance.  And  we  had  some  of  that. 

The  main  statistical  results  looked  pretty  good,  but  there 
were  some  things  on  the  edges  that  looked  not  so  good, 
aberrational  or  whatever,  but  it  was  out  where  we  had  the  onesies 
and  twosies.   We  had  special  counsel  on  that  case,  a  firm  called 
Carroll,  Burdick,  and  McDonough  [spells] .  Our  lead  counsel  was  a 
woman  named  Betsy  Leavy  [spells],  and  occasionally  a  man  named 
Chris  Burdick,  who  was  one  of  the  main  partners,  came  in.  We  had 
the  task  of  going  back  to  our  client—the  board  of  directors, 
management --and  showing  that,  no  matter  how  this  case  proceeded, 
it  was  going  to  be  potentially  inflammatory  and  extremely 
divisive  for  a  workforce  that  didn't  need  division  at  that  point, 
it  needed  healing.   If  there  was  anything  that  needed  to  be 
healed,  we  needed  to  heal  it.   We  didn't  need  to  make  it  worse. 
We  didn't  think  things  were  all  that  bad. 

And  so  we  did  settle  the  case,  and  the  district  paid  out-- 
I've  forgotten  the  numbers — I  think  it  was  around  $800,000.   By 
this  time  we  had  set  it  up  as  a  class  of  district  employees  who 
were  primarily  in  the  blue-collar  workforce.  We  had  a  settlement 
fund  administered  by  a  trustee.   We  also  paid  out  hundreds  of 
thousands  of  dollars  in  attorneys'  fees  to  the  plaintiffs,  and  we 
administered  the  case  in  the  most  professional  way  we  could,  and 
tried  as  best  we  could  to  not  run  from  it  but  to  say,  Okay,  we 
are  not  going  to  battle  this  out  and  leave  anybody's  blood  on  the 
courtroom  steps.   Because  that's  not  healthy  for  an  institution 
that  is  as  small  as  East  Bay- -for  any  institution.  And  although 
it  may  seem  a  large  one,  it's  a  real  small  one  when  you're 
fighting  with  your  own  family,  and  that's  kind  of  how  it  was 


I  give  a  lot  of  credit  to  the  Jean  Love  Smiths  and  the  Jerry 
Gilberts  and  the  board  of  directors,  frankly,  for  being  able  to 
sort  of  lead  the  district  through  that  tough  time.   It  was  a  very 
tough  time,  real  hard  stuff.  Real  hard  stuff  as  a  lawyer,  real 
hard  stuff  as  a  manager,  probably  hardest  stuff  as  a  director. 
In  the  final  analysis,  I  think  the  directors  think  that  they  were 
well  served  by  the  legal  process,  even  though  they  didn't  like 
having  to  pay  out  all  that  money  to  Todd  Withy,  but  that's  the 
way  civil  rights  litigation  works  and  they  realized  that. 

Now,  I  suspect  that  if  you  were  to  go  back  to  that 
workforce,  and  you  were  to  go  to  today's  Frank  Ervings  and  Stan 
Mclntoshes--they're  both  retired  now—you  would  probably  find 
that  the  things  that  were  done  that  were  affirmative  steps  that 
were  put  in,  in  addition  to  paying  out  money,  there  were  all 
kinds  of  tests  that  we  applied  and  tracking  mechanisms  we 
.established  and  all  that,  and  training  programs  and  the  full 
gamut  of  things  you  can  do--I  think  you  would  find  that  the 
frequency  and  the  severity  of  the  complaints  that  are  related  to 
diversity  of  any  sort  has  probably  been  significantly  diminished, 
and  I  think  it's  in  part  because  the  utility  district  learned  a 
great  deal  through  that  trying  time. 

I'm  saying  all  that  on  the  basis  of  having  been  gone  three 
and  a  half  years,  so  I  may  not  know  all  of  what  I  speak.   I  guess 
it's  almost  four  years  now  I've  been  gone.   But  my  sense  is  that 
it's  a  healthier  workforce,  healthier  workplace  as  a  result. 
That's  not  to  say  it's  entirely  healthy;  I  know  they  have  other 
sets  of  problems,  but  I  think  that  that  one  has  been,  or 
hopefully  has  been—it's  never  taken  care  of,  but  it  is  being 
attended  to  better. 

LaBerge:   So  you  were  never  in  court  on  this.   You  were  always-- 

Maddow:   Oh,  we  were  in  court,  but  it  was  not  in  a  full-blown  trial.   The 
judge  was  Lowell  Jensen,  who  was  formerly  the  district  attorney 
of  Alameda  County  and  is  on  the  federal  bench.   We  spent  a  fair 
amount  of  time  with  him.   A  good  deal  of  the  work  with  regard  to 
these  statistical  things  was  done  by  the  magistrate,  a  man  named 


Wayne  Brazil.  We  had  significant  amounts  of  activity.  We  had 
experts  and  statisticians  and  all  those  kinds  of  things  that  you 
do.   So  there  was  a  lot  of  litigation  activity,  but  it  never  went 
to  trial;  it  was  at  that  point,  before  we  were  going  to  get  to 
the  point  where  we  had  to  go  to  trial,  significantly  before  that, 
that  we  said,  "There's  a  better  way."  It  was  a  very  difficult 
settlement  to  negotiate,  but  we  made  it  work. 

LaBerge:  Did  you  initially  start  being  the  trial  attorney  for  it  and  then 

Maddow:   No.  At  the  time  that  I  became  general  counsel,  the  case  was 
already  underway,  and  Frank  Howard  had  been  the  lawyer  in  the 
office  who  knew  more  about  it  than  anyone  else.   The  legal  work 
was  primarily  being  done  by  outside  counsel  who  were  specialists 
in  this  type  of  law,  and  Betsy  Leavy  was  the  lead  lawyer.  Betsy 
was--I  think  very  highly  of  her.   I  still  consider  her  to  be  one 
of  the  best  lawyers  I've  ever  known.   Betsy—some  people  took  a 
dislike  to  her,  because  Betsy  has  a  thick  East  Coast  accent- - 
Betsy  is  the  kind  of  speaker  who  wouldn't  need  a  microphone  to 
address  a  political  rally.   She  has  a  voice  that  can  be  loud  and 
harsh  and  all  that  stuff.   She  is  not  a  harsh  person  or  a  loud 
person,  but  for  some  people,  she  was  a  little  off-putting  when 
they  first  met  her.  That  took  some  getting  used  to. 

I  loved  working  with  Betsy,  because  by  golly,  she  was 
direct,  she  was  straightforward,  she  could  cut  right  to  the 
chase,  and  she  was  a  real  fine  lawyer.   And  she  had  a  number  of 
younger  people  who  worked  with  her  who  were  also  very  good 
lawyers . 

When  I  came  to  the  office;  the  case  was  still  a  little  on 
the  quiet  side.   It  heated  up  again  after  I  had  been  in  the 
office  for  a  while.   Frank  was  still  there,  but  then  Frank 
retired  not  too  long  after  I  had  become  general  counsel,  and  I 
pretty  much  took  the  lead  myself.   That  was  in  part  because  we 
were  a  small  office  at  that  time  and  it  had  to  be  done,  and  in 
part  because  I  was  aware  of  the  sensitivity  of  it  and  I  thought 
it  demanded  my  attention. 


Human  Resources  Department 

LaBerge:  Maybe  I  am  beating  this  to  the  ground  but  I  have  one  more 
question.  Was  it  your  responsibility  or  was  it  the  human 
resources  office  in  general? 

Maddow:  You  mean  the  case? 

LaBerge:  No,  not  the  case,  but  just  affirmative  action-- 

Maddow:  Oh,  it  was  human  resources. 

LaBerge:  But  they  would  come  to  you  with  questions  or  problems? 

Maddow:   Yes,  yes.   And  for  a  very  long  time,  the  utility  district  had 

been  looking  at  the  legal  aspects  of  the  affirmative  action  and 
the  whole  range  of  employment  law.  Frank  was  pretty  good  in  that 
area.  After  a  while,  we  had  another  lawyer,  Nancie  Ryan,  who 
went  to  work  for  the  district  in  1981.  When  she  first  came 
there,  she  was  Nancie  McGann,  and  she  went  to  work  there  April  1, 
1981.   She's  now  I  think  the  assistant  general  counsel.   Nancie 
was  pretty  good  in  these  areas,  but  we  had  these  outside  lawyers, 
the  Carroll,  Burdick,  and  McDonough  firm  as  I  say,  and  in 
particular  Betsy.   They'd  worked  with  the  district  for  a  long 
time.   The  district  had  worked  with  a  consultant  named  Dick 
Biddle  [spells],  whose  work  was  highly  regarded  in  these  matters. 
Later  some  other  analytical  approaches  for  this  kind  of  work  came 
along,  but  for  what  he  did  at  the  time  he  did  it,  it  was  valuable 
work  for  the  utility  district,  and  the  human  resources  people 
worked  closely  with  him. 

On  the  affirmative  action  in  contracting  side,  that  took  a 
little  different  twist.   That  really  got  its  start,  I  guess  I 
would  say,  in  the  early  eighties,  when  a  woman  named  Artis  Dawson 
[spells],  she  came  to  the  district  right  after  Jerry  Gilbert 
became  general  manager.   There  was  quite  a  dispute  when  Jerry 


became  general  manager.   The  board  was  divided.  There  were  some 
other  candidates  who  were  being  considered  and  could  not  get  four 
votes.  Ken  Simmons  was  the  fourth  vote,  and  had  his  own  ideas. 

Jerry  was  not  a  candidate  at  that  time.  He  was  in  private 
business.   But  for  some  reason,  right  toward  the  end  of  the 
board's  labors  looking  at  some  other  candidates,  Jerry  knew  one 
of  the  directors,  I  think,  and  there  was  some  contact--!  don't 
know  who  initiated  it.  Jerry  became  known  to  the  board  as  a 
candidate.  They  knew  Jerry;  Jerry  was  quite  well  known  in  the 
water  industry.  Ken  Simmons  wasn't  real  pleased  with  that,  and 
in  fact,  at  one  point  in  all  of  that,  Ken  actually  filed  a 
lawsuit  against  the  district  in  regard  to  the  manner  in  which,  the 
board  of  directors  was  going  about  employing  its  new  general 
manager.  And  Jack  Reilley  probably  talked  about  this. 

LaBerge:   No,  he  didn't. 

Maddow:   Well,  it  was  an  issue  that  I  don't  know  all  the  details  of.   It's 
something  that  Jack  would  have  been  much  closer  to.   But  in 
effect,  some  of  the  things  that  Jerry  Gilbert  tried  to  do  and  did 
in  the  first  period  of  his  tenure  as  general  manager  were 
reflections  of  Ken  Simmons'  efforts  to  diversify  the  workforce  at 
the  top  of  the  organization.  And  Jerry  hired  a  series  of,  I 
think  it  was  six  people,  in  a  capacity  known  as  something  like 
executive  assistant  to  the  general  manager.   And  the  idea  was  to 
bring  in  people  who  would  be  sort  of  new  manager — embryonic 
managers,  sort  of.   People  who  were  from  outside  the  organization 
or  who  were  making  a  change  in  their  career  field  within  the 
organization  or  something  like  that,  and  hopefully  would  bring 
some  diversity. 

Artis  was  one  of  those  people.   She  had  previously  been,  I 
believe,  the  executive  director  of  the  Alameda  County- -hmm.   It 
was  not  the  parole  board,  but  it  was,  I  think,  something  like  the 
Criminal  Justice  Advisory  Board. 

But  she  worked  with  Lowell  Jensen,  who  was  D.A.  at  the  time, 
and  she  was  the  person  who- -she  was  like  thirty  years  old.   And 


Jerry  brought  her  in,  and  one  of  the  things  he  had  her  do 
initially  was  to  work  in  the  operations  and  maintenance 
department  working  directly  for  or  with  the  department  manager  to 
deal  with  labor  negotiations  issues,  because  that's  where  most  of 
the  workers  were  and  that's  where  most  of  the  workforce  issues 
came  up.   So  Artis  observed  the  labor  negotiations  in  1982  and 
all  that.  Not  too  long  after  that,  she  ended  up  being  appointed 
to  a  position  in  the  human  resources  department  where  she  had 
responsibility,  among  other  things,  for  some  aspects  of  the 
affirmative  action  program. 

Minority  and  Women-Owned  Business  Enterprise  Office 

Maddow:   Eventually --not  eventually,  but  almost  right  away,  I  guess--she 
was  also  given  the  responsibility  for  the  minority-  and  women- 
owned  business  enterprise  program,  the  other  half  of  affirmative 
action.  And  Artis  still  has  that  responsibility  today,  as  I 
understand  it.   I  don't  exactly  know  the  position  she  occupies 
now.   She's  a  department  manager.  But  under  her  prodding, 
pushing,  whatever- -she  was  the  one  who  implemented  the  Ken 
Simmons  policies,  the  things  that  he  had  ramrodded.   She  has  had 
a  number  of  people  who  have  worked  for  her  in  that  capacity,  and 
one  in  particular  is  a  woman  named  Audrey  [Rice]  Oliver,  who  is 
now  quite  well  known  as  a  consultant.  As  a  matter  of  fact,  if 
you  read  the  business  section  of  yesterday's  San  Francisco 
Examiner- -actually,  there's  a  section  called  "The  Bay  Today"  or 
some thing -- 

LaBerge:   Yes,  it's  a  new  special  section. 

Maddow:   There's  a  write-up  about  three  women,  successful  business 

entrepreneurs  et  cetera,  and  executives  in  the  Bay  Area.   Audrey 
is  one  of  them,  and  for  a  while,  she  was  East  Bay's  minority  and 
women  business  enterprise  coordinator,  working  directly  for 
Artis.   Audrey  has  close  contacts  with  the  Clinton 


administration,  and  she  is  reputed  to  be  a  candidate  for  mayor  of 

LaBerge:   I  went  to  one  of  their  community  meetings,  and  I  was  very 

impressed.  They  have  three  or  four  a  year,  with  statistics  and 
everything,  it  was  very  impressive. 

Maddow:   Oh,  yes.   It's  run  now  by  a  woman  named  Beverly  Johnson  who  first 
worked  at  the  district  as  an  engineering  aide.   I  remember 
working  with  her  when  she  came  there  and  was  carrying  drawings 
around,  and  lo  and  behold,  she  got  so  interested,  she  went  back 
to  school  and  got  a  degree.  I  don't  remember  the  stories  that 
led  to  her  ending  up  as  the  MBE  coordinator,  but  she's  a  real 
favorite  of  mine.   I  knew  her  when  she  was  probably  twenty  years 
old  working  in  the  engineering  department. 

But  people  like  that  have  fought  long,  hard  fights.  And 
you've  got  to  give  them  credit.  And  the  institution  is  better 
for  it.   I  really  like  working  with  those  kinds  of  effective 
people,  and  they  were—as  I  say,  most  of  the  time,  those 
functions  were  run  through  the  human  resources  department.   After 
a  while,  Artis  moved  over  to  run  the  district's  public  affairs 
department,  and  in  that  capacity,  she  took  minority-  and  women- 
owned  business  with  her.   But  affirmative  action  having  to  do 
with  the  workforce  stayed  back  in  human  resources . 

LaBerge:   We're  almost  out  of  tape,  so  should  we  end  there? 
Maddow:   Let's  end  here. 


District's  Response  to  Drought  of  1976-1977 

[Interview  3:  March  7,  1997]  ## 

Middle  River  Pumping  Plant 

LaBerge:  We're  going  to  talk  a  little  bit  about  how  the  district  responds 
to  shortages. 

Maddow:   I  thought  we  might  talk  about  a  couple  of  aspects  of  what 

happened  first  in  the  seventies  and  then  a  little  bit  in  the 
eighties.   Until  the  drought  period  in  1976  and  '77,  the  utility 
district  had  never  really  faced  a  significant  problem  with 
shortage  of  water,  but  the  combination  of  very  dry  years,  '76  and 
'77,  resulted  in  very  serious  problems  for  the  utility  district 
and  for  many  other  utilities,  many  other  water  suppliers,  and 
resulted  in  some  interesting  things,  both  from  a  legal 
perspective  and  from  an  institutional  perspective.   I  thought  I'd 
touch  on  the  water  supply  end  of  the  equation  and  then  a  little 
on  the  customer  end  of  the  equation. 

LaBerge:   Good. 

Maddow:   On  the  supply  end,  the  utility  district  was  facing  unprecedented 
shortage  of  supplies.   Up  until  the  time  of  the  '76- '77  period, 
the  utility  district  thought  it  had  a  greater  safe  yield  from  its 
project  than  it  now  knows  that  it  does,  because  '76  and  "77  did 
happen.   I  don't  remember  all  the  technical  details  or  the 
numbers,  but  suffice  it  to  say  that  after  1976,  the  utility 
district  entered  1977  in  a  somewhat  more  precarious  position  from 
a  water  supply  reserve  standpoint  than  it  had  done  in  the  past, 
and  of  course,  '77  was  an  even  worse  year.   So  the  district  had 
to  look  at  a  variety  of  arrangements  to  try  and  cope  with  that 
shortage.   It  looked  at  all  kinds  of  things,  including,  for 
example,  figuring  out  a  way  to  take  water  out  of  Camanche 
Reservoir,  which  isn't  connected  to  the  domestic  water  system, 
and  get  it  down  to  the  East  Bay. 


Eventually,  instead  of  doing  that,  one  of  the  things  that 
the  district  did  was  to  build  a  pumping  plant  out  in  the  Delta  on 
an  island  called  Woodward  Island.  The  pumping  plant  was  adjacent 
to  the  intersection  of  Woodward  Island  levees  and  the  district's 
aqueduct.  The  purpose  for  that  pump  station  was  to  let  the 
district  take  water  directly  out  of  the  Old  River- -actually,  it 
was  out  of  the  Middle  River.  Woodward  Island  has  Old  River  on 
one  side  and  Middle  River  on  the  other  side. 

LaBerge:   Old  River  being  the  name  of  the  river,  not--? 

Maddow:   Old  River  is  the  name  of  the  river,  and  Middle  River  is  the  river 
on  the  other  side  of  the  island.   The  district  was  on  the  Middle 
River  side  of  the  island,  because  there  was  a  little  easier 
access  there  for  construction  purposes.  The  district  built  this 
pump  station,  which  pumped  water  which  was  made  available  to  the 
district  under  its  federal  water  supply  contract.  The  federal 
contract  was  written  to  provide  for  the  district  to  get  water  out 
of  the  Folsom  South  Canal,  but  in  the  drought  period,  the 
.district  negotiated  an  emergency  change  in  the  contract  terms, 
and  the  federal  government  and  the  State  Water  Resources  Control 
Board  allowed  the  district  to  take  some  of  the  water  under  its 
federal  contract  at  Middle  River. 

LaBerge:   And  this  is  the  federal  contract  for  the  American  River  water? 

Maddow:   That's  correct.   It's  a  contract  that  had  been  signed  in  1970, 
and  that  contract  has  a  specific  point  of  delivery  along  the 
Folsom  South  Canal  up  near  Grant  Line  Road  in  southern  Sacramento 
County.   What  was  done  in  the  drought  period  was  that  the 
district  and  the  bureau  agreed  upon  an  emergency  change  in  the 
point  of  delivery  of  that  water,  and  the  State  Water  Resources 
Control  Board  consented  to  allowing  the  water  to  be  in  essence 
rediverted,  federal  water  to  be  rediverted  in  the  Delta  at  a  new 
point  of  rediversion.  That's  a  water  rights  term  of  art. 

And  so  the  district  quickly  built  this  remarkable  pumping 
plant  and  pumped  Delta  water  into  the  district's  #2  aqueduct, 
which  was  in  essence  valved  out  of  service—you  could  no  longer 


get  water  from  the  Mokelumne ,  from  Pardee  into  East  Bay  via  that 
aqueduct . 

Contra  Costa  County  Supply 

Maddow:   But  at  the  same  time  the  district  was  doing  that,  it  was 

participating  in  a  variety  of  other  arrangements  involving  other 
utilities  to  try  and  move  water  in  this  drought  circumstance. 
And  two  of  them  I  have  always  thought  were  very  interesting  from 
the  standpoint  of  both  institutional  arrangements  and  legal 
considerations  for  moving  California  water  around  to  meet  needs . 

As  you  know,  the  district  has  three  barrels  to  its  Mokelumne 
aqueduct,  and  the  Middle  River  pump  station  was  built  to  pump 
Delta  water  for  the  district  at  Middle  River  via  this  special 
pumping  plant.   On  the  other  side  of  the  aqueduct  right  of  way,  a 
second  pumping  plant  was  built.  And  this  one  took  water  out  of 
Middle  River,  pumped  it  into  the  utility  district's  #1  aqueduct, 
and  moved  it  just  a  few  miles  through- -across  Woodward  Island, 
and  then  across  the  island  just  west  of  there,  which  I  think  is 
called  Roberts  Island,  something  like  that,  and  deposited  the 
water  in  what  was  called  Indian  Slough.   Indian  Slough  is 
hydraulically  connected  with  Rock  Slough,  which  is  the  point  at 
which  the  Contra  Costa  Canal  takes  water  for  the  Contra  Costa 
Water  District,  which  serves  about  400,000  people  in  central  and 
eastern  Contra  Costa  County—sort  of  the  other  half  of  the  county 
that  East  Bay  MUD  doesn't  serve. 

Now,  Contra  Costa  has  a  federal  water  supply  contract,  and 
in  effect,  could  still  get  plenty  of  water  through  its  contract. 
It's  just  that  because  of  the  dry  period  we  were  in,  the  quality 
of  the  water  in  the  western  Delta  was  quite  degraded,  the  salt 
content  was  very  high.   And,  from  a  legal  perspective,  Contra 
Costa  was  able  to  exercise  some  rights  that  it  had  against  the 
state,  regarding  salinity  control.   The  federal  government  built 
its  project,  the  Central  Valley  Project,  which  included  the 


Contra  Costa  Canal,  prior  to  the  time  the  state  came  along  and 
built  the  State  Water  Project.  State  rights  are  junior  to  the 
federal  rights,  et  cetera. 

Contra  Costa  had  always  asserted  that  it  had  a  right  to 
higher  quality  water  for  drinking  water  purposes  than  the  feds 
were  prepared  to  deliver,  but  the  state  had  this  junior  water 
rights  priority.  And  so  Contra  Costa  had  many  years  before  been 
able  to  negotiate  to  a  point,  or  litigate  to  a  point,  where  the 
state  in  essence  had  to  make  a  commitment  to  guarantee  the 
quality  of  the  water  at  the  intake  to  the  Contra  Costa  Canal. 
And  so  at  the  same  time  the  utility  district  was  building  the 
Middle  River  pump  station  for  its  own  water  supply,  the  state 
came  along  and  built  a  pump  station  on  the  other  side  of  the 
right  of  way  to  use  the  district's  #1  aqueduct  to  move  water  from 
Middle  River--!  think  it  was  about  eight  miles  west  in  the  Delta- 
-to  deposit  it  in  Indian  Slough  to  sweeten  the  quality  of  the 
water  there  so  that  Rock  Slough  would  not  be  sucking  salt  water 
and  the  people  of  Contra  Costa  County  served  by  CCWD  would  still 
be  able  to  use  their  water  supply. 

So  there  were  two  relatively  unique  arrangements  that  were 
made  virtually  simultaneously,  and  in  a  couple  of  days.   I  mean, 
the  arrangements  were  worked  out  in  just  a  few  days.  The 
construction  cycles  were  very  short,  but  in  particular  the 
institutional  arrangements  took  just  a  very  brief  period  of  time. 

Marin  County  and  the  Great  Circle  Route 

Maddow:   But  the  most  surprising  part  of  all  was  that  at  the  same  time, 
there  was  what  I  call  the  "great  circle  route"  that  also  was 
going  on.   The  entity  in  the  Bay  Area  that  was  in  the  worst  shape 
from  a  water  supply  standpoint  at  that  point  was  the  Marin 
Municipal  Water  District.   They  take  their  water  supply  from  the 
rainfall  that  falls  on  the  slopes  of  Mt.  Tamalpais,  and  of 
course,  during  that  cycle,  there  wasn't  much  of  that,  and  they 


were  really  up  against  it.   The  great  circle  route  was  just  a 
really  remarkable  arrangement  that  got  worked  out  in  a  very  short 
period  of  time  with  some  very  simple  agreements . 

The  Metropolitan  Water  District  of  Southern  California 
recognized  what  was  going  on,  and  they  agreed  to  forego 
deliveries  of  some  of  the  water  to  which  they  were  entitled  from 
the  State  Water  Project.   The  state  then  pumped  some  of  that 
water  that  was  contractually  bound  for  Metropolitan,  they  pumped 
it  out  of  the  Delta  via  the  Delta  pumps,  the  regular  State 
Project  pumps,  and  pumped  it  into  what's  called  the  South  Bay 
Aqueduct . 

Now,  in  order  to  get  the  water  from  the  Delta  to  Marin 
County,  it  was  going  to  take  some  remarkable  arrangements.   There 
are  no  hydraulic  connections  to  any  of  those  places.   They  had  to 
fashion  a  very  special  connection  between  the  South  Bay  Aqueduct 
and  the  water  supply  system  of  the  City  and  County  of  San 
Francisco,  which  is  the  wholesaler  of  water  to  the  City  of 
Hayward.   San  Francisco  managed  to  find  a  way  to  get  the  water 
that  they  got  out  of  the  South  Bay  Aqueduct  to  the  City  of 
Hayward.   The  City  of  Hayward  abuts  the  service  area  of  East  Bay 
MUD,  and  so  there  are  some  pipe  connections  that  were  made 
between  the  Hayward  system  and  the  southern  end  of  the  East  Bay 
MUD  system. 

At  the  northern  end  of  the  East  Bay  MUD  system,  a  pipe  was 
thrown  across  the  Richmond-San  Rafael  Bridge,  the  Richardson  Bay 
Bridge.   In  essence,  one  lane  of  that  bridge  was  sort  of 
sacrificed  to  become  a  pipeline,  and  it  looked  like — it  was  what 
people  used  to  call  invasion  pipe,  I  think.   As  I  recall,  it  was 
just  steel  pipe,  unlined,  uncoated.   East  Bay  MUD  built  a  pump 
station  quickly  near  the  base  of  the  bridge. 

So  the  great  circle  theoretically  involved  Metropolitan 
giving  up  some  water,  the  state  pumping  that  water  to  San 
Francisco,  San  Francisco  moving  it  to  Hayward,  Hayward  moving  it 
to  East  Bay,  and  East  Bay  moving  it  through  its  system  to  Marin 
County . 


Now,  if  you  were  to  try  and  sketch  out  that  arrangement  and 
then  do  all  the  contractual  ramifications  of  it,  et  cetera,  you 
would  take  months.   But  this  deal  was  done  in  about  a  day,  and  it 
was--I  wrote  a  couple  of  drafts  of  what  ultimately  became  the 
contract.  My  recollection  is  that  it  took  just  a  very  few  pages. 
I  think  the  arrangements  that  allowed  Contra  Costa  to  benefit 
from  East  Bay's  #1  aqueduct,  I  think  that  was  a  three-page 
agreement.   And  it  seems  to  me  that  the  one  involving  the  great 
circle  route  was  about  six  or  eight  pages,  something  like  that. 
And  I  used  to  jokingly  say  that  we  worked  all  these  things  out  on 
the  two  sides  of  one  envelope. 

But  the  thing  that  amazed  me  was  that  in  these  tough  times, 
entities  which  had  not  always  gotten  along  all  that  well  made 
these  things  work,  and  I  think  we  did  it  all  legally,  and  I  think 
we  did  it  all  appropriately.   I  don't  think  that  there's  anybody 
who  ever  felt  that  they  had  taken  a  terrible  financial  beating  or 
anything  like  that  as  a  result  of  it.   The  people  of  Marin  County 
voted  to  pay  their  share  of  the  construction  costs,  et  cetera, 
out  of  their  current  revenues.  They  did  not  go  into  debt  to  do 
it;  they  took  an  enormous  economic  burden  on  in  a  short  period  of 
time,  because  there  was  a  lot  of  construction  that  was  involved. 
But  all  in  all,  these  systems  worked. 

Now,  I  don't  think  you  could  ever  find  a  molecule  of  water 
that  went  from  the  Delta  around  through  San  Francisco  and  East 
Bay  and  all  that  to  Marin.   What  basically  happened  was  the 
people  of  Marin  County  were  getting  water  out  of  East  Bay  MUD's 
San  Pablo  Reservoir,  I  imagine.  But  for  every  drop  of  water  East 
Bay  sent  to  Marin,  it  got  that  much  water  in  return,  and  most  of 
the  water  that  it  was  getting  was  basically  San  Francisco  water. 
So  from  a  water  quality  perspective,  it  really  did  not  make  an 
adverse  impact  on  East  Bay,  which  has  always  prided  itself  on  its 
pristine  water  supply. 

However,  pumping  that  American  River  water  out  of  the  Delta 
at  that  Middle  River  pump  station  did  have  an  adverse  impact  on 
East  Bay's  water  quality,  because  that  water  was  dramatically 
different  in  quality  from  what  East  Bay  had  in  storage,  and  from 


the  water  it  was  still  getting  out  of  the  Mokelumne  via  its  #3 
aqueduct.   So  my  recollection  is  that  operationally,  the  utility 
district  decided  to  put  all  of  that  water,  all  of  their  Delta 
water,  into  San  Pablo  Reservoir,  rather  than  spread  it  throughout 
the  system.   And  someone  would  have  to  check  this,  but  I  believe 
that  that's  the  way  it  worked  operationally. 

Getting  that  lower  quality  water  through  the  East  Bay  MUD 
system  presented  a  bit  of  a  problem,  because  the  utility 
district's  treatment  works  are  not  set  up  to  cope  with  that  lower 
quality  Delta  water.  But  as  it  turned  out,  in  what  perhaps  was  a 
lucky  coincidence,  or  perhaps  it  was  great  planning,  I'm  not  sure 
which,  shortly  after  this  drought  cycle  ended,  East  Bay  had  to 
rebuild  San  Pablo  Dam.   After  the  1971  earthquake  down  in  Los 
Angeles,  the  state  Division  of  Safety  of  Dams  required  a  new  form 
of  dynamic  analysis  of  earth-filled  dams  like  San  Pablo,  which  is 
a  very  old  dam.   San  Pablo  needed  to  be  rebuilt  for  seismic 
safety  purposes.   After  a  lot  of  engineering  work,  it  was 
determined  that  the  only  way  to  rebuild  it  was  to  take  it  out  of 
service.   And  so  in  effect,  San  Pablo  Reservoir  was  drained 
shortly  after  the  drought  period,  and  I  suspect  that  much  of  that 
lower  quality  water  eventually  just  got  dumped  to  the  sea,  as  San 
Pablo  Reservoir  was  being  taken  out  of  service  for  that 
reconstruction  job. 

Again,  there  are  facts  there  that  I'm  probably  forgetting  or 
oversimplifying,  but  I've  always  been  kind  of  fascinated  by  the 
fact  that  we  overcame  a  lot  of  legal  hurdles  and  obstacles,  a  lot 
of  institutional  biases ,  a  lot  of  regulatory  proceedings ,  and  did 
a  whole  lot  of  stuff  in  a  big  hurry  on  the  supply  end  to  try  and 
share  the  water  that  was  available.   I  have  never  seen  anything 
quite  like  it  since.   It  took  a  lot  of  doing  and  was  a  lot  of 

From  a  legal  perspective,  I  don't  think  we  broke  any  great 
new  ground  there.   We  did  a  lot  of  things  by  virtue  of  very 
simple,  very  straightforward  contracts.   But  I  think  what  we 
demonstrated  was  that,  when  the  parties  are  willing,  and  when 
there  is  an  obvious  need,  that  water  can  be  transferred  very 


efficiently  and  effectively  to  meet  crying  needs.   Of  course,  the 
trend  that  we're  moving  to  in  California  water  law,  and  western 
water  law,  is  that  transfers  of  water  need  to  be  facilitated. 
It's  one  of  the  points  of  the  Central  Valley  Project  Improvement 
Act,  it's  one  of  the  points  of  efforts  to  develop  and  improve  the 
water  transfer  legislative  system,  et  cetera.   I  would  say  that 
to  some  degree,  at  least  my  thinking,  and  I  think  the  utility 
district's  thinking,  about  what  can  be  done  with  regard  to 
transfers  helped  to  get  shaped  in  that  period. 

Customer  Usage  during  the  Shortage 

Maddow:   Let  me  switch  for  a  moment  now  to  the- -I  call  it  the  customer 
side  of  the  equation.   East  Bay  didn't  have  enough  water  to  go 
around,  and  needed  to  do  something  about  it.   There  weren't  a 
whole  lot  of  models  for  how  to  do  this.  We  in  effect  needed  a 
way  to  ration  water,  which  was  the  term  that  we  used  internally, 
although  it  was  not  a  term  that  the  district  wanted  to  use  in  its 
publicity  or  anything  like  that.   It  was  not  intended  to  be — it 
wasn't  supposed  to  have  the  feel  of  a  mandatory  imposition  by  the 
government.   Part  of  the  reason  for  that  was  the  utility  district 
did  not  have  police  power,  and  therefore  it  could  not  really 
impose  a  real  rationing  program. 

Instead,  the  choice  that  was  made  was  to  do  what  probably 
was  the  only  thing  the  utility  district  could  have  done  to  try 
and  get  its  customers  to  reduce  water.  That  was  to  do  as  much  as 
you  could  to  educate  your  customers  about  the  nature  of  the 
problem,  and  then  to  deal  with  rationing  through  a  pricing 
mechanism,  and  let  the  fare  box,  the  marketplace,  do  some  of  the 
control . 

That's  a  difficult  thing  to  do.   It  hadn't  been  done  before 
by  this  utility.   It  had  been  done  by  Marin  Municipal,  and  I 
found  myself  sort  of  going  to  school  on  the  experiences  and  the 
ordinances  and  programs  written  by  the  man  who  was  then  the 


lawyer  for  Marin  Municipal,  a  man  named  Tom  Thorner.   Tom  had 
helped  develop  some  pricing  structures  for  Marin,  which  of  course 
was  receiving  the  effects  of  water  shortage,  of  no  precipitation, 
a  year  faster  than  everybody  else,  because  they  didn't  have  the 
kind  of  storage  that  people  like  East  Bay  did. 

Will  Rationing  Work? 

Maddow:   So  we  looked  at  the  kinds  of  things  that  Tom  had  done.   In  a 

nutshell,  the  utility  district  management  and  board  gave  the  task 
of  developing  a  rationing  program  that  would  work  to  the  man  who 
was  at  that  time  the  director  of  engineering  of  the  district. 
His  name  was  Walt  Anton  [spells].   He's  dead  now.   And  to  the 
district's  data  processing  person,  a  man  named  Larry  Qvistgaard 
[spells]--!  think  that's  right — and  to  the  district's  customer 
services  manager,  a  man  named  Bob  Eaneman  [spells],  an  Old  Blue. 

LaBerge:   I've  heard  his  name. 

Maddow:   Yes,  he's  been  around  here  forever,  and  was  very  active  in 
Berkeley  service  clubs  and  things  like  that. 

But  our  task  was  to  come  up  with  a  program  that  would  work 
across  the  board  for  the  district's  customers.   It  was  all 
premised  upon  the  idea  that  there  would  be  across-the-board 
percentage  cutbacks  for  all  customers  in  an  effort  to  achieve  an 
overall  25  percent  reduction  in  the  consumption  of  water  by  the 
district's  customers. 

LaBerge:   When  you  say  "our  task,"  was  the  legal  department  part  of  this 

Maddow:   Yes.   I  was  the  fourth  person,  and  I  was  the  one  who  was  always 
the  scrivener,  and  I  found  myself  sometimes  having  to  be  the  one 
who  would  either  be  the  architect  or  the  gatekeeper.   I  would 
sometimes  find  myself  saying,  "You've  gone  beyond  where  I  think 

the  law  will  let  you  go, 
thing . 


and  it  was  that  kind  of  an  interactive 

The  four  of  us  worked  well  together.  We  didn't  always  agree 
on  things,  but  we  worked  well  together.  We  worked  hard,  and 
worked  some  long  hours. 

LaBerge:   What  were  the  legal  issues? 

Maddow:   The  legal  issues  had  to  do  with  what  you  could  do  in  the  absence 
of  the  police  power,  what  could  you  do  from  a  rate -making 
standpoint  to  try  and  cause  customers  to  reduce  their  consumption 
in  a  manner  which  would  afford  them  due  process  and  which  would 
observe  the  constitutional  provisions  regarding  equal  protection. 
And  it  was  equal  protection  that  became  the  big  issue  when  we 
first  came  up  with  the  program. 

The  board  of  directors  had  thought,  and  the  management  of 
the  utility  district  had  thought,  that  the  way  to  do  this  was 
simply  to  start  imposing  across-the-board,  uniform  cutbacks  for 
everyone.  And  so  the  first  theory  was,  do  it  on  a  percentage 
basis.   Look  at  the  single- family,  residential  customers,  and  the 
multifamily,  apartment  customers,  and  commercial,  and  industrial, 
and  just  cut  them  all  back.  And  you  might  have  different 
percentage  cuts  between  classes,  but  give  everybody  in  each  class 
the  same  kind  of  cutback.   So  that  was  the  proposal  that  the 
staff  made. 

One  of  the  critical  legal  issues  was  that  the  utility 
district  has  a  statutory  notice  provision  with  regard  to  how  it 
makes  rates .   It  can  only  make  rates  after  the  general  manager 
gives  the  board  a  report  and  recommendation  on  what  the  new  rate 
structure  should  be.   Then  there  is  a  provision  that  requires  a 
public  hearing,  and  there  are  some  time  limits  on  when  the  public 
hearing  can  be  held  and  when  the  board  can  act. 

So  we  went  through  all  the  notice  stuff,  and  put  out  this 
program,  and  went  to  the  public  hearing.   I'd  have  to  go  back  and 
check  the  records,  but  I  think  the  public  hearing--!  think  this 


was  one  that  was  held  in  the  auditorium  at  the  Kaiser  Center  in 
Oakland.   I  think  that's  right.   In  any  event,  we  got  a  roomful 
of  people  who  came  in  and  said,  "Wait  a  minute.   I  have  been 
conserving  water  at  my  home  for  a  long  time.   I  have  been 
redoubling  my  efforts  during  the  drought  of  1976,  and  here  you 
are  coming  along  in  1977  and  telling  me  I'm  going  to  get  a 
percentage  cutback?  That's  not  fair.  You're  denying  me  my 
rights.   I'm  not  being  equally  protected.  All  of  my  good  works 
in  the  past  will  have  gone  for  naught,  because  now  I  have  to  cut 
back  from  an  already  degraded  base,"  and  all  that. 

Well,  the  board  of  directors  decided  that  that  percentage 
cutback. plan  wasn't  going  to  work,  and  so  they  directed  the  staff 
to  come  up  with  an  alternative.   As  I  recall,  that  hearing  was  on 
a  Tuesday.  And  it  went  until  quite  late  in  the  evening,  which 
was  rare  for  the  utility  district,  which  normally  has  its  board 
meetings  in  the  afternoon,  but  never  in  the  evening.  That  one 
was  in  the  evening. 

Developing  Usage  Allotment 

Maddow:   So  the  team  of  us  went  back  to  the  drawing  boards,  but  it  was 

primarily  Mr.  Anton  who  went  home,  and  I  am  convinced  he  stayed 
up  all  night  working  on  this,  because  he  came  to  work  in  the  same 
suit  the  next  day.   I'm  also  convinced  that,  although  he  changed 
his  suit  the  next  day,  that  when  he  came  to  work  on  Thursday,  he 
had  not  been  to  sleep  yet.   He  developed  a  rationing  program 
which  he  first  had  to  sell  to  me  and  convince  me  that  we  could 
make  it  work  from  the  standpoint  of  due  process  under  the  law  and 
equal  protection. 

Basically,  it  was  a  system  that  provided  for  establishing  an 
allotment  for  each  single-family  residential  customer.   And  the 
way  we  established  the  allotment  was  to  find  data  which  allowed 
us  to  determine  in  essence  how  much  the  typical  single-family 
residential  consumer  would  use  for  inside- the-house  usage,  and 


establish  an  allotment  based  on  basically  what  we  called  health 
and  safety  needs  that  reflected  those  inside-the-house  usages. 
And  then,  everything  over  and  above  that  allotment,  we  suggested 
that  the  board  should  determine  was  in  the  nature  of  outside  use 
or  more  discretionary  use,  not  health  and  safety  related.   So  we 
wrote  some  measures  that  said  basically,  if  you  use  water  within 
your  basic  allotment,  the  price  really  won't  change—at  least:  not 
as  much- -but  if  you  use  water  above  your  allotment  and  get  into 
those  discretionary  areas,  the  further  you  go  into  the 
discretionary  use  area,  the  more  expensive  it's  going  to  be.   So 
we  adopted  what  was  called  a  tiered  rate  schedule,  and  it  was  the 
first  time  the  utility  district  had  ever  done  it. 

The  theory  of  our  tiered  structure  was  that  we  would  be 
still  trying  to  achieve  the  same  25  percent  reduction  in  water 
use.   The  board  of  directors  was  to  meet  the  following  week.   The 
staff  spent  literally  three  straight  days  without  a  break  trying 
to  fit  this  together,  trying  to  make  it  work,  convincing  top 
management  to  let  us  take  it  to  the  board.   The  board  scheduled 
committee  meetings  for  that  weekend--!  think  it  had  a  finance 
committee  and  an  engineering  committee  meeting,  and  the  staff 
made  presentations  to  both  committees  so  that  the  committees  at 
least  had  a  sense  of  what  was  going  on  prior  to  the  continuation 
of  the  public  hearing,  which  had  been  carried  over  from  the 
previous  week.   And  we  went  back  out  the  next  Tuesday  afternoon, 
I  think,  and  the  board  adopted  this  rate  structure. 

Now,  from  a  legal  perspective,  I  was  fairly  comfortable  with 
it,  because  I  thought  it  had  a  rational  basis,  that  it  was  an 
appropriate  legislative  action  by  the  board—that's  what  the 
board  is  doing  when  it  adopts  rates,  exercising  its  legislative 
function- -and  I  thought  that  we  had  a  defensible  nexus  between 
the  objective- -water  consumption  reduction- -and  the  mechanism 
that  we  were  using.   I  frankly  thought  that  we'd  covered  our  due 
process  bases  and  our  equal  protection  bases  through  the  way  in 
which  we'd  arrived  at  it  and  I  thought  the  allotment  system  would 
pass  equal  protection  muster. 


What  we  didn't  do,  and  frankly,  we  got  trapped  by  the  legal 
requirements  with  regard  to  notice,  we  didn't  reckon  on  the 
drought  getting  deeper  than  it  was  when  we  started.  Because  when 
we  started  and  when  the  general  manager  made  his  initial 
recommendation,  we  were  focusing  on  a  25  percent  consumption 
reduction  goal.  When  we  finished,  the  snow  surveys  for  on  into 
1977  had  come  in,  and  there  was  less  water  than  we  had  hoped,  and 
as  a  result,  the  district  adopted  a  35  percent  consumption 
reduction  goal.  And  in  fact,  the  consumption  reduction  that  was 
achieved  by  district  customers  was  38  or  39  percent  below  what 
would  have  been  anticipated  in  a  normal  year  for  that  period. 

But  the  rate  structure  was  calculated  on  recovering  the 
revenues  that  you—staying  revenue -neutral.   In  other  words,  if 
you  start  from  the  premise  that  a  utility  is  basically  a  fixed- 
cost  enterprise,  you've  still  got  to  recover  those  fixed  costs, 
plus  the  extraordinary  costs  of  the  drought,  through  the  fare 
box,  and  if  you're  trying  to  get  a  25  percent  reduction  in 
consumption,  that  translates  to  needing  a  33  percent  revenue 
increase  just  to  stay  even,  if  you  just  think  about  it  for  a 
minute -- 

LaBerge:   Right. 

Maddow:   And  so  that's  how  the  rate  structure  had  been  conceived.   But 

then,  that  25  percent  consumption  reduction  goal  increased  to  35 
percent,  but  we  had  already  gone  so  far  into  the  rate  process 
that  the  board  couldn't  back  out,  in  essence.   So  the  rate 
structure  that  was  adopted  was  aimed  at  a  25  percent  revenue- 
neutral  program,  and  in  fact,  the  district  lost  a  lot  of  money. 
It  really  ate  up  its  financial  reserves  during  that  period  of 
time,  because  the  rate  structure  was  not  consistent  with  the 
ultimate  consumption  reduction  goal  or  with  what  actually 

Recovering  from  that  revenue  drain  was  a  tough  issue  for  the 
utility  district  after  it  came  out  of  the  drought,  because  you'll 
remember  that  at  about  the  same  time,  Proposition  13  was  being 
passed.   We  were  in  a  period  of  sort  of  taxpayer  and  rate-payer 


revolt .  And  so  the  utility  district  went  through  some  very 
difficult  economic  times  after  that  that  were  kind  of  triggered 
by  our  getting  trapped  by  the  notice  provisions  of  the  Municipal 
Utility  District  Act  [1921]1  in  terms  of  this  revenue  program. 

But  the  program  worked.  The  main  reason  it  worked,  I  am 
convinced,  is  not  the  fare  box  measure,  but  it  was  public 
education  and  public  understanding  of  what  was  going  on.   The 
ethic  of  conservation  took  hold,  and  I  think  it's  still  evidenced 
in  the  utility  district.   The  principle  of  tiered  rates  as  a 
consumption  management  tool  became  established  at  the  utility 
district.  It  was  used  again  in  the  1980s,  and  now  it's  become 
part  of  their  permanent,  nondrought  rate  structure.  It's  very 
controversial,  as  I  think  you  probably  know  with  this  sort  of 
east-  and  west-of-hills  divide — 

LaBerge:   Yes. 

East  vs.  West  Argument  with  Examples 

Maddow:   And  that  relates  back  to  what  I  said  in  an  earlier  interview 

about  how  the  utility  district  is  now  much  more  subject  to  ward- 
versus-ward  debates,  and  this  tiered-rate  structure  debate  is  the 
principal  subject  over  which  that  takes  place.  And  the  reason 
for  it  is  that,  in  establishing  the  allotments  or  the  basis  for-- 


Maddow:   --the  more  you  use,  the  more  you  pay  type  structure.  Where  are 
the  knuckles  in  that  rate  curve  going  to  occur?  And  that  gets 
into  a  big  debate  about  larger  lots  versus  smaller  lots,  and 
warmer  climates  versus  [colder]  and  all  of  that.   And  that  has 
become  very  much  an  east-west  thing  that  the  utility  district  is 
still  dealing  with,  and  has  had  litigation  over,  and  now  there 

'California  Public  Utilities  Code,  Section  11500  et  seq. 


are  legislation  efforts,  et  cetera.  But  in  many  respects,  it's 
sort  of  rooted  back  in  the  ' 77  drought  management  rate  structure 
that  we  put  together. 

LaBerge:  Did  you  get  those  objections  at  the  public  hearing  too? 

Maddow:   In  the  seventies,  we  got  some  of  those  objections.  One  of  the 

people  who  was  one  of  the  loudest  objectors  was  a  gentleman  named 
Dean  Lesher,  who  was  a  newspaper  publisher  out  east  of  the  hills. 
Mr.  Lesher  had  a  very  large  property,  and  it  was  lushly 
landscaped.   He  was  bitterly  angry  at  the  fact  that  he  could 
conceivably  lose  some  of  his  landscaping  or  what  have  you. 

The  district  was  aware  that  there  would  be  cases  like  that, 
and  so  we  built  in  a  variety  of  what  I  used  to  call  safety 
valves,  which  would  allow  people  to  appeal  for  an  exception,  so 
that  they  could  get  a  larger  allotment.   For  example,  more  people 
in  the  house  would  mean  more  showers,  more  toilet  flushing,  et 
cetera,  and  therefore,  you  could  get  a  larger  allotment  for  that. 
But  you  could  also  in  some  circumstances  get  a  larger  allotment 
if,  for  example,  you  had  permanent  crops  or  some  such  thing  that 
might  be  affected.   I  don't  remember  that  that  was  one,  but 
something  like  that. 

Thousands  of  people  requested  exceptions,  and  Bob  Eaneman 
put  an  extra  desk  in  his  own  office  where  Gloria  McKnight  helped 
him  process  all  of  the  extraordinary  paperwork.   I  think  Bob  also 
ended  up  with  blood  pressure  problems--he  told  me  that  he  bought 
his  own  blood  pressure  monitor  during  this  hectic  period. 

And  Mr.  Lesher  wanted  exceptions  for  his  ornamental  trees 
and  things  like  that.   So  there  were  some  pretty  heated  arguments 
about  those  issues.   But  remarkably,  there  was  virtually  no 
litigation.   I  think  Bob  Eaneman  had  a  couple  of  small  claims 
court  actions,  but  we  never  had  a  superior  court  or  muni  court 
case.   I  think  Eaneman' s  cases  were  collections-type  cases,  or 
someone  attempting  to  recover  something  in  small  claims  court  for 
some  minor  damage  or  something  like  that.   But  we  literally  had 
no  litigation  over  that  rate  structure  in  the  seventies,  which  I 


always  thought  was  quite  remarkable,  because  it  was  so  new  and  it 
was  such  a  dramatic  change  from  the  past.  I  like  to  think  it  was 
because,  at  least  to  some  degree,  the  staff  work  and  the  legal 
work  was  good  work.   I  can  tell  you  that  it  must  have  been  okay, 
because  I  think  it  still  serves  as  the  model  for  the  way  people 
do  it  in  lots  of  places. 

But  that  was  the  history  of  it  in  the  seventies.  There  are 
a  lot  more  details  that  get  kind  of  interesting,  but — 

LaBerge:   Well,  do  you  have  some  anecdotes?  Like,  whatever  happened  with 
Mr.  Lesher? 

Maddow:   He  made  a  lot  of  noise.  At  one  point,  someone  told  me  that  he 
was  buying  water  by  the  truckload  someplace.   I  don't  believe 
that  he  ever  actually  threatened  a  lawsuit,  but  I  guess  it  was 
thought  that  he  was  the  kind  of  person  who  might  well  sue  over 
those  kinds  of  issues.   Mr.  Lesher  was  a  sort  of  a  crusty 
gentleman.   I  met  him  a  couple  of  times,  and  I  found  him  to  be 
really  fascinating,  because  I  think  in  his  own  way,  he  was 
brilliant.   There  were  some  parts  of  his  thinking  that  I  think 
may  have  been  a  little  misdirected,  from  my  point  of  view,  but 
more  than  anything,  it  was  a  loud  fight,  and  one  which  featured 
him  getting  in  his  own  newspaper  and  that  sort  of  thing. 

I  don't  remember  any  other  great  anecdotes  right  off  the  top 
of  my  head.   I'll  have  to  think  about  that  a  little  bit. 

We  did,  during  that  period  of  time,  have  a  really 
unfortunate  incident --shortly  thereafter,  I  guess.   We  had  a 
couple  of  cases  where  the  newspapers  and  the  electronic  media 
were  looking  for  examples  of  people  who  were  using  so  much  water 
that  they  were  going  to  be  either  shut  off,  or  have  what  was 
called  a  flow  restrictor  placed  in  their  meter.   If  someone  was 
using  too  much  water  and  continued  to  do  so,  the  district  was 
loathe  to  start  cutting  people  off,  because  it  didn't  have  police 
power,  but  it  did  have  a  policy,  which  we  wrote  into  the 
regulations,  which  said  that  if  you  use  way  too  much  water  and 
you  continue  to  do  it  and  don't  abide  by  the  allotment  program, 


we're  going  to  put  a  flow  restrictor  which  will  allow  you  to  get 
enough  water  for  health  and  safety  purposes  but  no  more. 

And  there  was  an  unfortunate  incident  in  which  the  first 
time  a  flow  restrictor  was  going  to  be  installed,  and  the  press 
wanted  to  go  along,  of  course,  it  turned  out  that  the  person  was. 
a  person  who  was  somewhat  unbalanced,  and  it  was  a  very  sad  case. 
I  was  really  pleased  to  see  that  the  press  chose  to  not  report 
it.   It  was  a  difficult  case,  social  service  agencies  became 
involved  later,  et  cetera. 

It  was  not  too  long  after  that  that  the  utility  district, 
shortly  after  the  drought,  had  to  deal  with  the  case  of  the 
famous  Richmond  water  lady,  who  thought  she  was  washing  away  the 
sins  of  the  world  by  running  water  from  every  tap  that  she  could 
all  the  time,  and  saturating  her  home,  water  running  on  the  roof 
and  all  over  the  property,  et  cetera.   She  was  an  elderly  person 
who  had  been  a  schoolteacher,  as  a  matter  of  fact,  and  I  think 
that  in  her  later  years  was  just  a  little  unbalanced  or 
disturbed.   That  was  a  case  where  the  police  became  involved,  and 
the  courts,  and  that  sort  of  thing,  and  flow  restrictors  were 
installed,  and  an  effort  was  made  to  try  and  control  it, 
basically  with  the  assistance  of  county  mental  health 
authorities,  et  cetera.   But  it  was  tied  back  to  whether  or  not 
water  was  going  to  be  available,  and  so  I  guess  that's  an 
unfortunate  anecdote. 

I  do  remember  one  other  anecdote  about  the  whole  business 
about  the  construction,  and  I  can't  verify  this,  I  can  just  tell 
you  the  story.  When  the  pipe  was  being  put  across  the  Richmond 
Bridge,  it  was — as  I  say,  it  was  just  lengths  of  steel  pipe. 
Right  in  the  middle  of  the  construction  project,  in  the  wee  hours 
of  the  morning,  a  man  was  in  a  truck,  and  he  was  going  to  go 
duck-hunting,  and  I  guess  he  fell  asleep  as  he  was  driving  across 
the  bridge.  His  car  veered  to  the  right  and  struck  a  stack  of 
this  pipe.   The  way  the  story  has  been  told  to  me  by  two 
different  people,  one  of  these  lengths  of  pipe  came  right  through 
the  windshield  of  his  car,  through  the  rear  window  of  the  car, 
and  out  the  back  part  of  the  camper  shell.  When  his  car  stopped, 


it  was  there  with  this  big  piece  of  pipe,  with  him  on  one  side  of 
the  car  and  his  dog  on  the  other  side,  and  neither  one  of  them 
with  a  scratch  on  them.   I  always  thought  to  myself,  Somebody's 
going  to  get  sued  over  this,  but  I  don't  think  anybody  ever  was, 
so  we  got  very  fortunate  in  that  one,  I  guess. 

Public  Hearing  on  Rates  and  Board  Support 

LaBerge:  Well,  when  they  had  the  public  hearing,  were  you  one  of  the 
persons  up  there  answering  the  questions? 

Maddow:   Yes.   And  it  was  a  situation  in  which  Jack  Reilley,  of  course, 
was  still  the  general  counsel  at  that  time,  but  I  had  done  most 
of  the  work.   For  at  least  one  of  the  hearings,  the  big  hearing 
on  the  rates,  I  know  I  was  sort  of  directly  in  the  line  of  fire. 
And  the  lawyer's  role  was  to  explain  and  to  answer  questions  and 
that  sort  of  thing.  The  board  took  most  of  the  heat,  and  it  was 
hard.   It  was  something  they  had  not  been  subjected  to  before, 
and  they  didn't  like  it.  But  I  thought  that  they  actually  did  a 
pretty  good  job. 

And  when  they  came  out  of  that  hearing  and  when  it  was  time 
to  give  the  staff  direction,  my  recollection  is  that  the  board 
went  at  it  in  a  very  professional  way.  They  could  very  easily  at 
that  point  have  run  for  cover  or  looked  for  political  ground  to 
protect  or  that  sort  of  thing,  but  they  were  looking  at  what  it 
was  going  to  take  for  the  utility  to  get  through  this  grave 
crisis.   And  I  have  to  say  that  I  thought  it  was  handled--! 
thought  it  was  sort  of  one  of  those  shining  hours  for  that  board. 
There  were  occasional  outbursts  or  flashes  of  anger  or  emotion 
from  directors ,  but  that  is  to  be  expected  from  elected  officials 
at  tough  times . 

They  were  aware  of  this  problem  with  revenues.  They  were 
aware  that  the  utility  district  was  facing  economic  problems  down 
the  line,  but  they  were  not  about  to  exacerbate  a  difficult 


situation  by  ratcheting  up  that  revenue  structure  after  they  had 
already  said,  "This  is  what  it's  going  to  be."  So  that  took  a 
lot  of  courage,  and  I  think  that  was  a  good  thing  to  have  done. 

LaBerge:  Do  you  remember  who  was  on  the  board  then? 

Maddow:   I  believe  the  chair  of  the  board  at  that  time  was  a  man  named  Ted 
Hitchcock,  and  I  think  Jon  Q.  Reynolds  was  on  the  board.  He  was 
the  board  president  later.  Helen  Burke.   I  think  it  was  probably 
Chuck  Wright  from  Richmond.  Ken  Simmons.  And  at  that  time,  I 
can't  remember  if  it  was  Sandy  Skaggs  or  DeWitt  Krueger  from  the 
east  side.  The  '78  election  was  after  all  of  this,  and  so  it's 
whoever  got  elected  in  '74  and  '76  that  we  were  dealing  with.   I 
ought  to  remember  that  better,  but  I  don't. 

More  on  Agreements  to  Share  Water,  1976-1977 

LaBerge:   Going  back  to  the  agreements  about  the  transfer  of  water  and 

everything:  when  I  was  going  through  some  of  the  papers,  I  read 
about  agreement  number  two  and  agreement  number  three.  I  don't 
know  if  that's  what-- 

Maddow:   That's  precisely  what  I'm  referring  to.   I'd  forgotten  about  that 
nomenclature . 

LaBerge:   Okay.   And  it  said  agreement  number  two  was  East  Bay  MUD,  CCC-- 
what's  that,  Contra  Costa  County  Water  District? 

Maddow:   Yes. 

LaBerge:   --Department  of  Water  Resources,  and  the  Bureau  of  Reclamation. 
So  that's  four. 

Maddow:   That's  correct.   That's  the  agreement  that  provided  for  the  use 
of  the  district's  #1  aqueduct  to  pump  Middle  River  water  to 
Indian  Slough.  The  bureau  was  the  water  supplier  to  Contra 



Costa.  What  the  state  did  was  to  take—the  state  provided  a  new 
intake  for  Contra  Costa1 s  water  supply,  is  what  it  amounted  to. 
And  the  bureau  had  to  be  involved,  because  the  bureau  also  owns 
the  Contra  Costa  Canal.  It's  operated  by  and  for  Contra  Costa 
Water  District,  but  it  was  a  bureau  facility,  and  the  state  was 
exercising  its  legal  duty  to  Contra  Costa  Water  District  to  try 
and  get  better  quality  water,  and  so  they  built  this  eight -mile 
extension,  if  you  will,  to  the  intake.  And  that  was  a  four-party 
agreement  that  was  written  very  quickly — 

And  were  you  involved  in  writing  it? 


LaBerge:   And  who  else? 

Maddow:   Oh,  gosh. 

LaBerge:   Were  you  the  only  one  from  the  district? 

Maddow : 


No,  I  wasn't  the  only  one.   I  was  certainly  involved.  Walt  Anton 
and  a  man  named  Orrin  Harder,  who  was  the  Water  Resources 
Planning  Division  manager,  were  both  involved.   From  the  Contra 
Costa  Water  District,  I  think  it  was  a  man  named  John  Gregg. 
He '  s  now  the  general  manager  of  the  San  Benito  County  Water 
Agency.   From  the  Department  of  Water  Resources  and  the  bureau,  I 
just  don't  recall.   I  should. 

Well,  if  it  wasn't  controversial,  maybe  people's  names  don't 

Maddow:   No.   I  remember  that  the  lawyer  for  the  DWR  was  a  man  named  John 
Cape,  and  I  think  the  main  staff  person  was  Wayne  MacRostie.   But 
the  other  names  don't  come  back  to  me. 

LaBerge:   Well,  then  in  the  other  agreement,  the  different 
Metropolitan  Water  District. 

person  was 

Maddow:   Yes.   Agreement  number  three  would  have  had  a  bunch  of  parties. 




Maddow : 


Yes.   It  was  East  Bay  MUD,  Department  of  Water  Resources, 
of  Reclamation,  and  maybe  MMWD  is  Mar in. 


Marin  Municipal  Water  District.   San  Francisco  got  involved  in 
that  too,  somehow,  and  so  did  the  City  of  Hayward.   I  could  still 
take  you  to  the  place  in  the  city  of  Hayward  right  next  to  the 
Mervyn's  department  store,  their  big—it's  like  their 
administrative  building  in  the  old  Capwell's,  across  the  street 
from  what  used  to  be  Joseph  Magnin's,  right  by  the  creek  there  in 
downtown  Hayward,  where  there  are  two  sets  of  manholes—two 
"personnel  access  structures."   [laughter]  And  in  the  drought, 
there  was  a  twelve- inch  pipe  that  stuck  out  of  those  two  things 
with  two  sets  of  meters  on  it,  and  that  was  the  interconnection 
point.   It  would  move,  I  don't  remember  how  many  thousands  of 
gallons  or  millions  of  gallons  of  water  a  day. 

But  it  was  a  very  visible,  above-ground  structure  in  the 
middle  of  a  sidewalk  about  a  block  from  City  Hall  in  downtown 
Hayward . 

Well,  there  was  a  memo  from  Frank  Howard  commending  the  staff  for 
all  the  work  through  all  of  it,  and  particularly  you  for  all  the 
work  that  you'd  put  in.   So  you  must  have  been  the  main-- 

I  kind  of  was.  And  I  have  to  say,  Germaine,  that  it  was 
absolutely  fascinating,  but  it  wasn't  as  though  we  were  dealing 
with  somebody  who  was  putting  up  rock-ribbed,  obstinate 
opposition.  We  had  motivated  people  who  were  trying  to  get 
something  done,  and  our  task  was  to  find  a  way  to  make  it  work 
quickly  and  legally  and  efficiently.   Those  were  the  kinds  of 
challenges  we  had  to  face  and  were  able  to  do  it. 

Woodward  Island  Right  of  Way 

Maddow:   I  mean,  there  were  lots  of  other  things  that  came  up.   Trying  to 
buy  the  pumps  for  the  Middle  River  pump  station,  and  I  remember 

Maddow : 


that  we  ended  up  buying  used  pumps  from  someplace.   Oh,  that's 
not  right,  that's  not  right  at  all I  I  talked  about  the  fact  the 
San  Pablo  Reservoir  was  going  to  be  drained.  Well,  we  had  bought 
the  pumps  for  draining  San  Pablo  Reservoir.  When  we  drained  San 
Pablo,  you  take  that  huge  reservoir  out  of  the  system,  you've 
still  got  to  get  water  to  some  places.  And  so  the  plan  had  been 
evolved  before  the  drought  to  take  San  Pablo  out  of  service  and 
to  bypass  the  reservoir  with  a  big  pipe,  and  to  move  the  water 
through  that  pipe  through  some  big  pumps. 

Well,  those  pumps,  the  district  had  already  bought.   So  what 
it  did  when  the  Middle  River  pump  station  had  to  be  built  was  to 
put  them  on  a  truck  and  take  them  out  there  and  install  them  in 
the  Delta  for  a  different  purpose.   But  we  needed  five  and  we 
only  had  four,  or  we  needed  four  and  we  only  had  three  or 
something  like  that. 

And  so  a  guy  named  Paul  Lindquist,  another  Old  Blue,  still 
around  here  someplace,  who  was  our  purchasing  manager,  and  Walt 
Anton,  they  went  to  work,  and  eventually  they  found  a  pump  from 
an  outfit  called  Dynaquipt  or  something.  And  they  bought  a  used 
pump  that  had  been  used  I  think  in  the  oil  industry,  that  was 
available,  that  was  clean,  and  it  could  be  used.   Most  water 
pumps  are  vertical  turbine  pumps  j  this  was  horizontal  turbine  or 
something.  We  had  to  go  through  some  real  nip-ups  to  be  able  to 
buy  the  thing  without  competitive  bidding,  and  then  to  go  through 
the  construction  contracting  wrinkles  to  get  it  out  there. 

And  of  course,  Woodward  Island  is  only  reachable  by  ferry, 
and  so  we  had  to  negotiate  special  arrangements  to  get  access  to 
the  ferry  when  we  wanted  it  instead  of  when  the  ferry  operator 
wanted  to  do  it.  And  then  we  had  to  deal--oh,  God,  now  it's 
coming  back. 

Well,  tell  me!   [laughs] 

There  were--oh,  jeez!   We  had  to  get  right  of  way,  because  the 
district  has  the  stretch  of  right  of  way  that  the  aqueducts  are 
in,  but  we  needed  construction  space,  and  then  we  needed  space  in 


which — I  think  a  portion  of  the  pump  station  was  actually  outside 
the  right  of  way.  There  was  one  part  of  the  land  on  Woodward 
Island  that  was  owned  by  a  man  who  was  kind  of  mysterious .   I 
don't  remember  all  of  these  details,  but  I  can  probably  turn  you 
on  to  the  person  who  would. 

The  district's  aqueduct  section  manager  at  that  time  was  a 
man  named  Al  Bonner,  and  Al  was  a  remarkable  man,  one  of  the 
really  capable  people,  someone  who  had  a  tremendous  amount  of 
just  basic  intelligence,  but  more  importantly,  he  had  a  basic 
amount  of  common  sense,  and  he  had  no  fear  of  anything.  And  Al 
needed  all  of  those  things,  because  at  that  time,  he  was  in 
Stockton,  and  he  was  a  very  high-ranking  official  with  the 
utility  district,  and  he  was  black.   That  was  very  rare  back  in 
those  days,  and  he  was  a  guy  who  got  where  he  belonged  on  merit 
and  merit  alone,  and  just  guts.   I  loved  working  with  the  guy, 
and  I  still  just  think  the  world  of  him.  He  subsequently  retired 
from  the  utility  district,  was  a  City  Council  member  in  Stockton, 
and  is  now  on  the  board  of  the  Stockton  East  Water  District. 

But  Al  knew  this  guy,  because  this  guy  owned  land  that  was 
farmed  on  Woodward  Island.   Al  took  the  district's  right-of-way 
guy,  a  man  named  Walt  Goggin,  another  Old  Blue  who's  dead  now, 
and  they  went  to  see  this  guy  out  in  Livermore  or  Tracy  or 
someplace.  He  invited  them  up  to  the  house,  and  they  sat  down  on 
the  porch,  and  as  I  recall,  there  was  a  bottle  of  his  whisky  that 
was  involved,  and  they  talked  about  East  Bay  MUD  needing  to  use 
some  of  his  land.   After  a  while,  he  said,  "Do  what  you  have  to 
do."  Okay? 

And  I  didn't  think  too  much  about  that,  because  I  knew  that 
I  had  the  federal  government  on  one  side  of  me  and  the  state 
government  on  the  other  side  of  me,  and  a  lot  of  other 
landowners,  and  I  had  the  lawyer  for  the  reclamation  district  on 
the  island  to  deal  with,  and  I  needed  a  little  more  than  that. 
So  I  had  to  say  to  those  guys,  "Go  back.   He's  got  to  sign 


So  they  went  back,  and  he  didn't  like  it  and  they  didn't 
like  it,  but  he  signed  something  that  Walt  Goggin  had  put 
together,  and  we  got  something  that  I  said,  "That's  good  enough; 
turn  the  builders  loose  to  go  on  this  guy's  land." 

Now,  this  is  another  one  of  those  anecdotes  that  I  need  to 
be  real  careful  about.   I  don't  remember  the  man's  name,  but  the 
story  that  I  was  told  way  back  then  was  that  one  of  the  reasons 
why  this  man  didn't  really  like  to  have  his  name  on  too  many 
pieces  of  paper  or  anything  like  that  was  that  he  was  a  very 
wealthy  farmer,  with  land  there  on  Woodward  Island  and  elsewhere, 
but  the  rumors  were  that  much  of  his  profits  from  his  farming 
operations  eventually  went  to  some  political  cause  in  Great 
Britain  or  something  like  that. 

So  I  never  knew  whether  that  was  true,  and  I  was  always 
fascinated  by  it,  because  here's  this  guy  who  had—if  in  fact  it 
was  true — that  kind  of  sympathies,  and  here  East  Bay  MUD  sends  in 
this  remarkable  black  man,  who  just  was  about  as  effective  a 
public  servant  as  I've  ever  known,  and  at  the  end  of  that 
conversation  over  that  bottle  of  whisky,  this  man,  who  was 
apparently  motivated  by  these  larger  political  causes ,  looked  at 
Al  Bonner  and  Walt  Goggin  and  trusted  them  and  said,  "Do  what  you 
have  to  do."  I  always  loved  that  story;  I  just  thought  that  was 

Anyway,  those  were  some  interesting  aspects  of  all  of  that. 

PG&E  License  on  the  Mokelumne 

Maddow:   I  have  one  more  little  anecdote  that  I  will  tell  you  that  relates 
to  that  same  period  of  time.   It's  a  little  off  the  drought 
stream,  but  it  fits  in  some  respects. 

One  of  the  things  that  was  going  on  in  parallel  with  all  of 
this  had  to  do  with  the  regulation  of  the  PG&E  water  storage 


facilities  upstream  of  East  Bay  on  the  Mokelumne.  The  City  of 
Santa  Clara  was  attempting  to  take  over  the  license  that  PG&E 
held  from  the  Federal  Energy  Regulatory  Commission.   It  was  kind 
of  a  first  case  of  its  kind.  There  was  quite  a  battle  in  this 
country  over  what  was  called  the  municipality  preference,  and 
whether  a  city  like  Santa  Clara  could  exercise  that  preference, 
and  kick  an  investor-owned  utility  off  the  river  after  their 
original  Federal  Power  Commission  license  had  expired.  The 
original  Federal  Power  Act1  looked  like  that  could  happen. 

Well,  we  were  very  interested  in  what  would  happen,  because 
of  course,  the  utility  district  and  PG&E  have  a  very  carefully 
dovetailed  relationship  that's  expressed  through  a  series  of 
court  decrees  about  how  the  Mokelumne  is  operated.   PG&E  is 
interested  in  operation  for  hydroelectric  energy,  and  of  course, 
the  utility  district  for  domestic  water.  How  they  interrelate  is 
very  important  to  the  productivity  of  the  East  Bay  water  system. 
If  somebody  was  going  to  take  it  over,  like  Santa  Clara,  we 
wanted  to  know  about  it.   So  every  time  something  was  going  on 
with  Santa  Clara,  we  would  get  involved. 

There  was  a  meeting  one  time  having  to  do  with  one  aspect  of 
the  PG&E  relicensing  and  the  Santa  Clara  effort,  and  it  was  up  in 
some  meeting  room  in  Sacramento.   This  was  at  a  period  of  time 
when  we  were  all  struggling  because  of  the  drought  circumstances. 
There  was  a  gentleman  there  from  the  U.S.  Fish  and  Wildlife 
Service  who  was  asserting  that  the  PG&E  system  needed  to  be 
changed,  because  it  was  not  releasing  sufficient  water  from  their 
dams  to  keep  fish  below  those  dams  in  good  health.   It's  a  much 
more  common  thing  that  we  deal  with  now,  but  that  kind  of  an 
argument  was  heard  from  Fish  and  Wildlife  back  then. 

The  PG&E  man  who  was  there  knew  their  facilities  very  well, 
and  for  the  particular  facility  he  was  talking  about,  Salt 
Springs  Dam,  which  was  a  huge  dam,  very,  very  tall,  and  a  huge 
reservoir  behind  it  the  size  of  Pardee,  very  deep  canyon.   He 

federal  Power  Act,  49  Stat.  863  (1935).   [Renumbered  by  92  Stat.  3148 


said,  "You  know,  there  is  some  water  that  flows  below  that  dam 
all  the  time."  It's  basically  gallery  leakage  and  through  one 
little  pipe,  and  my  recollection  is  it  was  seventeen  cubic  feet 
per  second  that  flowed  continuously.  He  said,  "The  only  other 
way  we  could  get  water  out  of  that  dam  is  through  an  eighty-four- 
inch  sluice  valve  that  was  a  part  of  the  original  construction, 
and  it  has  never  been  operated  since  the  original  construction, 
and  if  it  was  operated  today,  we  first  don't  know  if  we  could  get 
the  valve  open,  we're  quite  sure  we  couldn't  get  it  closed,  and 
we  are  afraid  that  opening  it  could  lead  to  the  type  of  problems 
that  could  threaten  the  safety  of  the  dam.   So  we  aren't  going  to 
do  it." 

And  the  Fish  and  Wildlife  biologist  pounded  his  fist  on  the 
table,  and  he  said,  "Well,  damn  it,  you  could  throw  a  siphon  over 
the  top  and  get  the  water  the  fish  need!"   [laughter]  And  you 
know,  that  for  me  was  kind  of  harbinger  of  things  to  come  with 
all  the  other  battles  we're  all  having  with  Fish  and  Wildlife 
Service  and  getting  fish  flows  out  of  reservoirs. 

Now,  you  said  you  wanted  anecdotes;  that's  why  I  gave  you 

LaBerge:   Yes,  that's  good.   What  happened  with  that? 

Maddow:   Well,  eventually,  there  was  a  lot  of  litigation,  there  were  a  lot 
of  FERC  hearings,  and  eventually,  the  Federal  Power  Act  was 
amended  in  something  called  the  Public  Utility  Rates  and  Policies 
Act,  PURPA,  of--I  think  it  was  1978. 

But  in  any  event,  PG&E  got  a  new  license.   Santa  Clara 
eventually  got  more  or  less  a  settlement  that  allowed  them  to  get 
access  to  some  other  power  facilities,  and  Santa  Clara  continues 
to  be  a  very  active  player  in  the  public  power  field  as  a  part  of 
the  Northern  California  Power  Agency  and  things  like  that.   But 
they  didn't  get  the  PG&E  system  up  on  the  Mokelumne.   As  a  matter 
of  fact,  I  don't  think  any  systems  like  the  PG&E  system  ever  were 


transferred  on  the  basis  of  the  municipality  preference, 
changed,  is  what  basically  happened. 

The  law 

LaBerge:  On  that  note,  another  thing  that  I  saw--oh,  there  was  permission 
for  East  Bay  MUD  to  collect  PG&E  bills  at  the  San  Leandro  office. 

Maddow:   Oh,  yes. 

Changes  in  Focus  from  Fifties  to  Eighties 

LaBerge:  And  when  I  saw  that,  I  thought,  Oh,  that's  interesting.   I  wonder 
what  the  background  of  that  is?  Was  it  convenience,  or — ? 

Maddow:   Yes,  it  was  a  combination  of  convenience  and  the  two  entities 

trying  to  find  ways  to  streamline  their  operations.   That  sort  of 
thing  is  still  going  on.   There's  a  business  office  now  in  Walnut 
Creek  which  I  think  was  originally  a  PG&E  office  where  it's  also 
an  East  Bay  MUD  customer  service  center,  or  at  least  you  could 
pay  your  bills  there. 

And  what  happened,  for  many  years,  the  utility  district,  in 
what  I  call  the  old  days  before  electronic  data  processing  and 
all  of  that,  the  district  had  business  offices  in  a  lot  of 
locations,  I  think  five  or.  six  of  them.  And  the  business  office 
managers  had  quite  a  presence  in  their  local  communities.   They 
would  be  involved  in  service  clubs  and  that  sort  of  thing.  That 
was  all  harkening  back  to  the  days  in  the  late  fifties  when  the 
utility  district  had  this  huge  bond  issue  that  went  on  the 
ballot,  $252  million,  $258  million,  to  build  Camanche  Reservoir, 
and  Briones,  and  the  third  aqueduct,  and  things  like  that.   It 
was  called  the  Big  M.   That  was  a  huge  undertaking  in  the  fifties 
for  the  utility  district,  and  people  who  ran  the  local  business 
offices  were  a  big  part  of  getting  chamber  of  commerce  support, 
and  Rotary  Club,  and  those  kinds  of  things. 


What  you  saw  when  you  came  across  the  memorandum  about  East 
Bay  and  PG&E  working  together  on  bill  collections  and  that  sort 
of  thing  was  just  a  reflection  of  the  fact  that,  by  the  time  we 
got  into  the  seventies  and  beyond,  it  became  less  likely  that 
people  or  entities  like  East  Bay  MUD  were  going  to  maintain  very 
many  remote  business  offices,  and  so  the  district  has  kind  of  cut 
back  in  a  good  part  of  that,  does  much  more  now  from  remote 
locations  through  telephone  and  that  sort  of  thing. 

But  it  has  established  throughout  the  community  a  whole  lot 
of  places  where  people  can  go  and  in  effect  pay  their  bills  at 
the  local  pharmacy  or  some  such  thing .  And  that ' s  done  through 
just  a  series  of  relatively  simply  collections  agreements  and 
that  sort  of  thing.  The  utility  district  has  never  had  any 
problem  with  any  of  those  that  I'm  aware  of.   I  think  the  initial 
problem  was  getting  over  the  sort  of  mental  block  of  actually 
sitting  down  and  working  with  an  investor-owned  utilities  people. 
My  goodness,  how  can  we  do  that?  We're  different.   But  I  can't 
think  of  anything  that  got  terribly  exciting  about  it,  except 
that  there  were  some  old-fashioned  thoughts  that  had  to  be  kind 
of  changed  as  that  went  on. 

And  then  in  the  eighties ,  when  the  utility  district  was 
working  much  more  in  the  era  of  water  conservation,  it  then  went 
the  other  way  and  established  a  new  business  office  which  really 
focused  on  water  conservation  activities,  particularly  in  the 
areas  in  the  warmer  climates  east  of  the  hills,  and  that's  the 
so-called  Alamo  business  office.   I  don't  know  whether  that's 
what  it's  still  called.  But  it  was  the  counter-current.   It  was 
not  so  much  because  the  utility  district  was  looking  to  have  a 
business  office  presence  out  there.   It  wanted  to  have  this  other 
form  of  presence,  the  water  conservation  presence,  and  so  its 
water  conservation  activities  were  largely  focused  there.   Some 
real  knowledgeable  professional  people  with  water  conservation  as 
their  sole  profession  have  worked  out  of  there.   There  are  also 
other  business  office  functions  there,  I  know,  but  that's  been  a 
big  one. 

LaBerge:   That's  the  main  thing. 

Maddow:   Yes,  I  think  so.   I  don't  know  exactly  how  it's  configured  now. 

Go  down  the  rest  of  your  list  and  let's  see  what  else  you 
want  to  talk  about. 

LaBerge:  Okay.  Was  there  any  other  legal  issue  about  changing  the  rate 
structure?  Did  EOF  at  some  time  challenge  your  rate  structure? 

Maddow:    I  don't  remember  an  EDF  challenge  to  the  rate  structure.   I  do 

remember  EDF  becoming  concerned  about  the  rates  from  a  couple  of 
perspectives.  EDF  has  always  been  one  of  the  environmental 
organizations  that  has  viewed  market  forces  as  being  a  valuable 
tool  in  regard  to  conservation  of  natural  resources,  and  they 
have  always  been  an  advocate,  for  example,  of  the  tiering  of  rate 
structures  and-- 

LaBerge:   Oh,  I  didn't  realize  that. 

Declining  Block  Rates  and  Chevron 

Maddow:   To  some  degree,  we  did  have  an  earlier  issue,  although  it  was 

primarily  an  economic  issue  and  a  financial  issue  more  so  than  a 
legal  issue.   That  was  back  when  I  first  went  to  the  utility 
district,  it  had  what  were  in  those  days  called  declining  block 
rates.   The  theory  of  it  was,  the  economy  of  scale.   In  those 
days,  and  I  think  probably  still  today,  the  utility  district's 
largest  water  customer  was  the  Chevron  refinery  in  Richmond. 
Now,  for  the  average — let's  say  the  single  family  residential 
customer,  if  you  look  at  the  load  curve  on  a  daily  basis  or  a 
weekly  basis,  you'll  see  great  fluctuation  as  the  water  is  turned 
on  to  take  showers  in  the  morning  and  run  the  dishwasher  at 
night,  and  water  the  lawn  whenever  that  is.   You'll  see  the  load 
curve  for  the  individual  customer  go  up  and  down  like  that, 
[motioning]  For  Chevron,  it's  a  flat  line.   It's  a  big  line, 
because  they're  using  a  lot  of  water,  but  it  doesn't  vary  very 
much.  And  so  from  the  standpoint-- 


LaBerge:  Okay,  you  were  talking  about  the  declining  block  rates,  and 

Maddow:   Chevron  in  particular  was  the  most  dramatic  example,  because  they 
were  the  largest  customer.  But  they  probably  had  the  flattest 
load  curve,  because  that's  a  refinery  that's  basically  going  all 
the  time.  They  were  using  water  for  cooling  purposes,  and  there 
wasn't  a  great  deal  of  variation  in  the  way  they  took  water.   So 
once  you've  built  that  infrastructure  to  get  the  water  to  them, 
you  don't  have  a  lot  of  variable  costs,  and  therefore,  depending 
upon  how  you  recover  your  fixed  costs  from  the  ratepayers,  you 
probably- -the  economies  of  scale  would  suggest  that  you  probably 
can  charge  them  a  lower  unit  price  than  you  can  somebody  for  whom 
you  have  to  build  in  the  facilities  to  handle  the  peaks.   You 
don't  need  a  peaking  reservoir  or  pump  for  a  Chevron. 

In  between  Chevron  and  the  residential  customer,  in  those 
days  we  had  packing  plants,  for  example.  There  used  to  be  a  lot 
of  fruit  and  vegetable  packing  plants  in  San  Leandro  and  Oakland. 
They're  not  there  any  more,  but  in  those  days,  they  were  huge 
seasonal  users.   If  you  think  about  the  rate  curve  or  the  demand 
curve  for  Chevron,  and  the  single-family  residents,  and  then  you 
think  about  those  packing  plants,  packing  plants  would  be  taking 
very  little  water  maybe  eight  months  of  the  year,  and  then  huge 
amounts  for  several  months. 

Changing  Times  Brine  New  Needs  and  Different  Costs 

Maddow:   So  can  you  put  all  those  people  on  the  same  pricing  structure? 
From  the  financial  standpoint,  and  this  became  more  of  a  factor 
after  the  drought  and  after  these  economic  problems  the  district 
had  found  itself  built  into,  there  are  a  lot  of  questions  that 
began  to  be  asked  about  how  one  goes  about  recovering  the 
revenues  that  it  needs,  given  the  characteristics  of  the  customer 


base  that  you  had,  and  given  the  fact  that  there  were  increased 
demands  as  the  demographics  of  the  population  changed.  And  by 
that  I  mean,  the  utility  district  hasn't  really  grown  that  much 
in  terms  of  the  number  of  people  within  the  service  area  in  the 
last  twenty-five  years.   It's  probably  still  somewhere  between  a 
million  one  and  a  million  two .  When  I  went  to  work  for  the 
utility  district,  I  think  it  was  a  little  less  than  a  million, 

But  what's  happened  is,  that  same  number  of  people  is  living 
in  a  lot  more  houses  and  apartments.  Because  it  used  to  be,  I 
don't  know,  three  people,  three  and  a  half  people  per  dwelling 
unit ,  and  now  it ' s  maybe  1.8.  The  houses  are  spread  out  more . 
You've  got  people  living  in  Hercules  and  Pinole,  which  weren't 
anything  more  than  little  company  towns  twenty-five,  thirty  years 

So  the  utility  district  was  faced  with  the  sort  of  double- 
barreled  challenge  of  making  sure  that  as  it  went  forward  into 
this  period  of  revenue  needs --the  district  needed  to  raise  more 
money — and  a  changing  rate  base  in  the  sense  that  the  packing 
plants  were  starting  to  disappear  and  we  weren't  seeing  those  big 
commercial  loads  come  in,  industrial  customers  were  going  away. 
And  this  sort  of  increasing  number  of  dwelling  units  in  areas  to 
which  new  facilities  were  going  to  have  to  be  extended  and  that 
sort  of  thing,  what's  the  best  way  to  go  about  raising  revenues 
that  you  need? 

And  at  about  the  same  time,  pf  course,  in  the  late 
seventies,  the  utility  district  began  for  the  first  time  to 
really  pay  real  close  attention  to  questions  of  whether  growth 
was  paying  its  own  way.   I  have  to  say  that  from  a  political 
perspective,  the  arrival  on  the  board  of  Helen  Burke  really 
brought  those  questions  to  the  fore  in  a  very  pointed  way  for  the 
first  time.   The  questions  had  been  there  before,  but  they  hadn't 
been  as  pointed.   And  I  have  always  given  Helen  Burke  a  great 
deal  of  credit.   For  a  long  time,  the  votes  would  be  six  to  one 
on  some  of  the  issues  that  she  was  concerned  about,  but  she  held 
her  ground  and  she  was  very  effective. 


In  any  event,  what  happened  with  regard  to  the  rate 
structure  was  that  there  were  a  number  of  shifts  that  ended  up 
having  to  be  made .  The  district  moved  away  from  a  declining 
block  rate  to  more  of  a  flat  rate  commodity  charge.  The  district 
altered  the  mix  between  that  portion  of  the  water  bill  which  is  a 
pure  commodity  charge,  which  is  just  volume-driven,  and  that  part 
which  is  really  the  service  charge,  which  reflects  elements  of 
the  district's  fixed  costs. 

But  the  biggest  change  was  that  the  district  began  to  charge 
a  much  higher  price  for  new  connections.   The  district  began  to 
focus  much  more  clearly  on  what  facilities  were  going  to  need  to 
be  constructed  over  time  in  various  parts  of  the  district,  and 
who  ought  to  pay  for  them.   And  so  for  the  first  time- -and  this 
was  work  that  Frank  Howard  was  very  involved  in,  much  more  so 
than  I  was — for  the  first  time,  the  utility  district  began  to 
look  at  this  balance  between  what  part  of  the  new  facilities 
should  be  paid  for  by  existing  customers  and  what  part  should  be 
paid  for  by  growth. 

So  through  the  seventies  and  on  beyond  then,  the  utility 
district  began  to  evolve  a  fairly  sophisticated  system  of  looking 
at  facilities  and  determining  what  their  costs  would  be.   The 
district  is  divided  for  this  purpose  into — it  used  to  be,  I  think 
it's  probably  still  the  same—into  seven  planning  regions.   If 
you  go  to  hook  up  a  house  in  one  of  those  regions,  you're  going 
to  pay  what  they  call  a  system  capacity  charge  that  will  be 
different  region  by  region,  depending  upon  the  facilities  needs 
in  that  zone. 

In  addition  to  that,  the  utility  district  began  to  look  at 
other  factors  in  its  economic  picture,  and  out  of  that  evolved 
something  called  the  elevation  surcharge.   If  you  live  up  at  the 
top  of  the  hill,  when  you  get  your  water  bill,  if  you  look,  there 
will  always  be  a  line  that  talks  about  the  elevation  surcharge, 
and  that  line  is  intended  to  say  that  people  who  are  receiving 
water  from  facilities  which  require  pumping—it's  primarily 
related  to  pumping- -they  should  be  bearing  the  cost  of 


installing,  maintaining,  and  operating  those  systems  to  move 
water  to  that  elevation. 

Marginal  Cost  Pricine 

Maddow:   All  of  this  was  a  part  of  looking  at  a  whole  variety  of  more 

market -related  economic  forces  and  trying  to  put  them  into  the 
district's  revenue  mechanisms.  One  of  the  big  questions  that 
always  used  to  be  debated,  and  EDF  had  a  piece  of  this,  was 
whether  or  not  the  district  should  engage  in  something  called 
marginal  cost  pricing.   Should  we  be  raising  the  price  of  water 
in  effect  to  the  point  where  people  would  be  much  more  conscious 
of  how  much  the  next  unit  of  water  that  they  used  was  going  to 
cost?  There  was  a  consultant  who  we  used  back  then  named 
Harrison  Call.   I  think  we  first  knew  Harry  when  he  was  at  a  firm 
called  R.  W.  Beck  from  Seattle,  and  he  had  done  a  lot  of  work  on 
the  marginal  cost  pricing  theories  related  to  electricity. 

Then  he  began  to  look  at  it  from  the  standpoint  of  water, 
and  despite  some  of  the  things  we  used  to  hear  from  some  of  the 
people  in  the  EDF  about  how  water  ought  to  function  like  other 
commodities  in  terms  of  the  elasticity  of  demand  as  price  went 
up ,  what  we  were  always  finding  through  Harry ' s  work  and  all  the 
rest  of  the  work  we  could  find  was  that  the  elasticity  of  demand 
— the  coefficient  of  elasticity  of  water  was  very  low,  because 
the  basic  price  was  so  low.   But  if  you  priced  it  high  enough  so 
that  there  would  be  a  higher  coefficient  of  demand,  you  would  be 
pricing  beyond  the  actual  cost  of  the  water.   And  even  before 
some  of  the  constitutional  amendments  that  we've  had  since  these 
debates  began  were  enacted,  we  always  knew  that  we  were  supposed 
to  be  pricing  at  the  actual  cost  of  the  water,  or  something  close 
to  it. 

And  so  we  did  have  debates  at  the  policy  level,  not  so  much 
legal  arguments,  not  so  much  litigation  in  those  days,  but  there 
were  lots  of  debates  about  those  pricing  issues.  They  resulted 


in  I  think  a  pretty  modernized  economic  program  at  East  Bay. 
It's  been  looked  at  by  a  lot  of  other  utilities  as  kind  of  a 
model.  Los  Angeles  Department  of  Water  and  Power  has  done  a 
great  deal  with  it  now  on  seasonal  variations.  They  now,  in 
addition  to  an  elevation  surcharge,  they  now  use  a  seasonal  rate 
concept  where  water  is  thought  to  have  much  more  value  in  the  hot 
months,  and  therefore,  it  ought  to  be  priced  a  little  higher,  and 
those  who  use  more  in  the  hot  months  will  suffer  from  it. 

While  I  was  driving  to  this  interview  today,  I  was  on  the 
telephone  with  Bob  Helwick,  who's  now  East  Bay's  general  counsel. 
Senator  Richard  Rainey  [spells]  from  out  in  Contra  Costa  County 
has  recently  asked  the  California  attorney  general  for  an  opinion 
as  to  whether  Proposition  218,  the  "Right  To  Vote  On  Taxes  Act," 
which  was  passed  by  the  voters  last  November  [1996],  whether  or 
not  it  prevents  East  Bay  from  being  able  to  use  tiered  rates  as  a 
part  of  its  regular  pricing  structure,  or  whether  the  Proposition 
218  procedural  requirements  apply,  and  also  whether  some 
Proposition  218  substantive  requirements  about  charging  the 
actual  cost,  whether  those  would  apply.   It  will  be  interesting 
to  see  how  that  works  out,  because  if  Rainey 's  theory  is  correct, 
it  could  have  a  significant  impact  on  some  of  the  revenue-raising 
mechanisms  that  East  Bay  and  others  are  using.   Prop.  218  has 
some  pretty  onerous  provisions  that  would  be  difficult  to  apply 
to  ordinary  rate-making.   So  anyway,  that's  a  subject  that  will 
go  on  and  on. 

The  utility  district  has  had  some  litigation  on  this  issue. 
An  organization  called  WATER- -Water  Allocation  Through  Equitable 
Rates,  I  think,  or  something  like  that—it's  headed  by  a  man 
named  Charles  Brydon  [spells].   They  sued  a  couple  of  times, 
trying  to  challenge  the  rate  structures  that  the  utility  district 
was  using  in  the  drought  in  particular  in  the  eighties.   They 
didn't  get  very  far  with  their  case  in  the  eighties.  Eventually, 
it  ended  up  with  a  court  of  appeals  decision  in  the  utility 
district's  favor.   I  think  that  decision  came  down  in  1993  or 
early  1994.   I  believe  it's  cited  as  Brvdon  vs.  East  Bay  MUD.  I 
don't  recall  it  offhand. 

LaBerge:  And  were  you  the  one  who-- 

Maddow:   The  case  was  started  while  I  was  still  general  counsel.   I  didn't 
litigate  it  myself;  people  who  were  in  the  office  did.  Verna 
Bromley  in  particular  had  a  major  role  in  litigating  that  case, 
also  Nancie  Ryan.   It  was  interesting  because  Mr.  Brydon  feels 
passionately  about  this  cause,  and  worked  as  hard  as  he  could  to 
try  and  find  a  way  to  state  a  cause  of  action,  and  frankly  had 
some  difficulty  doing  it.  The  utility  district  won  the  case  for 
what  I  thought  were  good  reasons.  Probably  the  easiest  way  for 
you  to  get  at  that  if  you  want  to  start  asking  me  questions  would 
be  to  go  and  take  a  look  at  the  opinion.   I'd  have  to  go  back  and 
refresh  my  memory  on  it. 

But  that's  the  only  real  serious  litigation  about  the  form 
of  the  rate-making  that  the  district  had. 

I  should  tell  you  that  the  pattern  of  system  capacity 
charges  that  the  utility  district  uses  is  to  some  degree  being 
replicated  at  the  Contra  Costa  Water  District  with  what  it  calls 
its  Facilities  Reserve  Charge.   They  have  very  significant 
litigation  underway  with  the  Building  Industry  Association  of 
Northern  California  about  their  Facility  Reserve  Charges.  The 
reason  I  think  that  they're  getting  that  litigation  rather  than 
East  Bay  is  that  the  pace  of  development  is  much  quicker  in  the 
eastern  portion  of  their  service  territory  than  it  is  anyplace  in 
the  East  Bay  service  territory.  The  price  per  house  in  the 
Contra  Costa  service  territory  is  much  lower,  and  as  a  result, 
these  Facilities  Reserve  Charges  have  potential  for  a  bigger 
impact  on  the  housing  market,  so  the  builders  are  fighting  very 
vigorously  on  those  issues. 

Taxation  of  EBMUD  Real  Property  by  the  Mountain  Counties 

Maddow:   I  guess  if  we  want  to  talk  about  economics,  there's  one  other 
thing  I  could  touch  on  for  a  moment  that  I  had  a  major  hand  in. 


There's  a  provision  of  the  California  Constitution  that  says  that 
real  property  owned  by  a  public  agency  outside  its  jurisdictional 
boundaries,  that  real  property  is  subject  to  property  taxation  on 
the  value  of  the  land  alone,  not  on  the  value  of  the 
improvements .  That  constitutional  measure  was  adopted  back  in 
the  sixties  after  years  of  debate  about  whether  the  mountain 
counties,  as  they  styled  themselves,  could  tax  the  water  systems 
of  Los  Angeles,  San  Francisco,  and  East  Bay  MUD.  And  to  make  a 
real  long  and  bothersome  story  short — 

LaBerge:   Well,  you  can  go  into  it.   That's  one  of  the  things  on  my  list. 
We're  talking  about  Amador,  Calaveras,  and  San  Joaquin? 

Maddow:   Yes.   In  the  seventies,  the  utility  district  began  to  look  at 

some  fairly  dramatic  increases  in  the  way  in  which  its  property 
up-country  was  being  assessed.   This  was  prior  to  Proposition  13 
when  property  tax  rates  were  really  rising  in  a  lot  of  places, 
and  the  utility  district  was  seeing  some  of  that.  The  utility 
district  was  at  that  time,  I  think  probably  still  is,  probably 
the  second  largest  taxpayer  in  Amador  County.  Maybe  that's 
changed  now,  but  in  those  days,  there  was  a  lumber  company  that 
was  a  bigger  taxpayer,  but  that  was  the  only  one. 

Essentially  what  happened  is  that  the  utility  district,  in 
acquiring  the  property  for  the  Pardee  Reservoir  back  in  the 
twenties  and  the  early  thirties,  had  acquired  one  piece  of 
property  that  had  a  characteristic  that  the  counties  called  a 
"water  right."  It  wasn't  a  water  right,  but  they  called  it  a 
water  right,  and  they  taxed  it  as  a  water  right.  They  put  an 
enormously  large  value  on  it.  When  Jack  Reilley  got  wind  of  it, 
he  wanted  to  do  something  about  it,  and  that  started  several 
years  of  arguments. 

Essentially,  what  the  utility  district  had  done  was  to 
condemn  a  piece  of  property  that  was  owned  by  a  man  named  Lloyd 
Thayer,  who  was  a  kind  of  an  entrepreneurial  type,  who  was  aware 
that  in  the  twenties,  East  Bay  was  coming  up  onto  the  Mokelumne 
to  build  this  big  enterprise,  and  he  bought  a  piece  of  property 
which  looked  like  it  might  be  a  moderately  decent  damsite 


downstream  from  Pardee.  He  got  the  city  of  Lodi  to  help  him 
finance  an  operation  up  there,  and  he  formed  something  called  the 
Colorado  Power  Company,  and  actually  scratched  out  at  least  one 
abutment,  I  understand.  Well,  I  think  I've  actually  seen  it  once 
in  my  life.  There  is  actually  a  notch  where  you  can  see  the 
abutment  of  the  site  of  old  Thayer  Dam,  which  was  never  built. 

His  idea  was  that  he  would  build  a  little  dam  across  there, 
impound  some  water,  maybe  make  a  little  power  out  of  it,  and  have 
some  water  to  sell  to  Lodi  and  others.   His  real  idea  was  that  he 
was  going  to  get  rich  off  East  Bay  MUD,  and  to  a  degree  he  did. 
[laughter]   So  East  Bay  MUD  ended  up  filing  a  condemnation  case, 
and  the  man  who  filed  it  I  guess  was  probably  Ted  Wittschen,  who 
was  the  first  real  general  counsel,  and  he  did  a  very  smart 
thing.   It's  kind  of  like  when  people  want  to  keep  a  piece  of 
property  from  being  developed  now  and  they  don't  buy  the 
property,  they  buy  a  development  right.   East  Bay  condemned 
something  that  the  courts  characterized  as  being  in  the  nature  of 
an  easement  against  Mr.  Thayer1 s  right.   And  the  easement  was 
defined  as  being  that  portion  of  Mr.  Thayer 's  fee  simple 
ownership  that  would  have  allowed  him  to  develop  and  operate  a 
dam  and  a  little  pond — it  wouldn't  have  been  a  reservoir;  it  just 
would  have  been  run  of  the  river,  riparian- type  ponding — at  that 

In  first-year  law  school,  they  sometimes  tell  you  that  when 
you  think  of  the  concept  of  fee  simple  in  regard  to  a  piece  of 
property,  it's  all  these  sticks  that,  gathered  together  into  a 
bundle,  represent  fee  simple.   One  of  those  sticks  is  what  East 
Bay  condemned.   Didn't  take  the  whole  bundle;  just  took  the 

Ever  since  then,  that  stick  has  been  on  the  tax  roll  in 
Amador  and  Calaveras  Counties.   The  river  is  the  boundary  between 
the  two  counties  at  that  point.   And  a  couple  of  very  inventive 
county  counsels  and  assessors  came  up  with  the  idea  that  they 
would  start  boosting  up  the  assessment  of  that  right  over  the 
years,  and  we  ended  up  having  to  challenge  it. 


The  way  in  which  the  constitution  allows  you  to  challenge 
this  type  of  assessment  is  to  go  to  the  State  Board  of 
Equalization.  The  state  board  primarily  exists  for  the  purpose 
of  equalizing  the  assessments  between  the  counties.  At  least:,  it 
did  that  prior  to  Proposition  13.  That's  no  longer  a  very  big 
function.  And  they  are  also  the  assessment  appeals  body  for  the 
regulated  utilities  and  the  railroads  and  people  like  that,  but 
then  they  also  have  this  function  for  these  public  agencies. 
They  almost  never  have  hearings  on  public  properties . 

Experts  and  Compromise 

Maddow:   We  filed  protests  to  the  assessments,  paid  the  taxes  under 

protest,  and  filed  applications  for  equalization  assessment  and 
adjustment,  or  something  like  that- -filed  applications  with  the 
state  board,  and  eventually  took  them  to  hearing  over  a  couple  of 
years.   Filed  some  lawsuits  which  were  never  actually  served, 
never  actually  litigated.  After  a  very  long  period  of  time,  we 
ended  up  essentially  with  the  parties  agreeing  on  a  modus 
operandi  from  that  point  forward.   The  counties  agreed  to  fix  the 
value  of  the  water  rights  and  not  escalate  them,  and  we  agreed  to 
accept  the  method  of  assessment  that  they  were  putting  on  the 
acreage  the  district  owned.   They  were  assessing  it  at  a  higher 
value,  we  thought,  than  really  was  warranted.   But  by  the  time  it 
came  time  to  decide  whether  to  pull  the  trigger  and  actually 
serve  those  lawsuits  and  battle  it  out  with  those  counties  or 
not,  a  lot  of  harsh  words  had  been  exchanged,  and  the  utility 
district  has  to  live  in  Amador  and  Calaveras  and  San  Joaquin 
Counties.   And  so  it  really  didn't  want  to  pick  a  huge  fight  with 
those  entities,  and  they  didn't  really  want  to  have  a  huge  fight 
with  us  either.   So  we  looked  for  a  way  to  compromise,  and  as  is 
so  often  the  case,  the  definition  of  compromise  is  that  everybody 
goes  away  a  little  bit  angry,  and  that's  pretty  much  what 
happened . 


We  had  some  real  battles.  We  had  some  very  good  people  who 
were  the  experts  on  either  side.   I  frankly  think  we  had  the 
better  of  it  in  terms  of  our  experts  and  our  preparation  and  our 
ability  to--we  pretty  much  destroyed  one  of  their  witnesses  on 
the  valuation  of  the  water  rights  on  cross-examination,  and  he's 
never  let  me  forget  it.  We've  actually  been  able  to  communicate 
since  then. 

LaBerge:  Who  were  your  experts? 

Maddow:   Our  principal  expert  on  the  overall  case  was  a  man  named  Norm 

Murray.  His  first  name  was  Angus;  Angus  Norman  Murray,  who  had 
been  the  regional  director  of  the  Bureau  of  Reclamation  and  then 
had  opened  a  consulting  firm  called  Murray,  Burns,  and  Kienlen 
[spells].   Norm  Murray  was  [in  accent]  a  Scotsman  who  was  a 
cigarette  smoker,  and  a  fast  mind  and  wit,  and  just  absolutely 
told  it  like  it  was,  and  was  a  wonderful  witness.   Norm  was  our 
valuation  witness  who  in  essence  said  that  none  of  the  theories 
that  the  counties  were  using  for  valuation  of  this  water  right 
would  work,  and  he  wrote  an  excellent  report  on  it. 

We  also  had  a  man  named  Dave  Wilier  [ spells ] ,  who  was  from  a 
firm  called  Tudor  Engineering.  We  used  Dave  as  a  rebuttal 
witness  to  counter  a  theory  under  which  the  counties  were  trying 
to  establish  a  value  for  the  old  Thayer  right.  We  had  an 
appraiser  named  Jack  Keeler  [spells],  who  was  from  up  in 
Fairfield.   He  was  our  property  appraiser.   Jack  Reilley  and  I 
litigated  these  cases.   I  did  most  of  the  work,  in  particular  in 
the  year  when  we  had  the  big  hearing,  which  was  I  guess  the  '77 
tax  case.   I  guess  we  probably  had  that  hearing  in  '78  or  '79. 

Bill  Parsons  was  the  person  from  the  district's  real  estate 
section.  I  guess  it  was  called  the  Land  Division  in  those  days, 
and  Bill  and  I  worked  very  closely  on  these  things. 

I'm  trying  to  remember  the  names  of  the  people  who  worked  on 
these  matters  for  the  counties.   The  county  counsels  I  remember 
well.   John  Hahn  was  then  the  Amador  County  counsel  and  still  is. 
John  and  I  developed  a  kind  of  a  love-hate  relationship  over  the 


years.  We've  really  fought,  but  I  think  it's  fair  to  say  we 
really  like  each  other.  You  know,  in  our  own  ways,  I  guess  we 
became  good  friends.  And  I  still  can  call  up  there  and  get  his 
secretary,  Audrey  Parker,  and  she  says,  "Well,  Bob,  when  are  you 
going  to  come  up  and  see  me?"  kind  of  thing. 

The  county  counsel  of  Calaveras  County  was  George  Huberty. 
Excuse  me,  he  wasn't  the  county  counsel,  but — let  me  get  this 
straight.   There  was  a  time  when  George  Huberty  was  the  county 
counsel  in  Calaveras,  and  Joe  Huberty,  his  brother,  was  the 
county  counsel  in  Amador.  But  then  Joe  Huberty  became  a  judge  in 
Amador,  and  I  think  George--!  guess  he  stayed  on  as  county 
counsel,  but  then  at  some  point,  he  was  no  longer  county  counsel 
and  he  was  doing  this  as  a  private  attorney. 

And  what's  that  guy's  name  from  San  Joaquin?   I  can  see  the 
guy  from  San  Joaquin,  but  I  can't  think  of  his  name.   Very  nice 
guy.   Terry  Dermody. 

Then  the  assessors  were  Charlie  Clark  in  Calaveras,  who  was 
just  a  great  sort  of  country  gentleman.  And  I  can't  remember  the 
name  of  the  guy  in  Amador. 

They  had  a  guy  who  was  the  manager  of  one  of  the  offices  in 
those  days  of  the  firm  of  CH2M  Hill,  who  was  their  expert  on  the 
valuation  of  the  Thayer  right.   He's  the  guy  who  we  just  tore 
apart  on  cross-examination.  He  had  absolutely — by  the  time  he 
was  done,  we  had  him  talking  to  himself,  because  he  had  tried  to 
put  together  a  case  to  value  the  right  which  just  wouldn't  work. 
I  don't  consider  myself  a  litigator,  but  that,  from  the 
standpoint  of  cross-examination,  was  one  time  I  think  I  did  a 
pretty  good  job. 

We  ended  up  getting  decisions  from  the  board  which  resulted 
in  tax  refunds  being  paid  to  the  utility  district,  primarily 
based  on  the  right,  and  as  I  say,  after  a  couple  of  years  of 
flailing  away  at  one  another,  a  decision  was  made  to  walk  away 
from  those  battles  and  come  back  and  look  another  day. 

Effect  of  Proposition  13,  1978 

Maddow:   I  don't  know  what's  happened  in  recent  years.  Just  as  I  was 
leaving  East  Bay  MUD  in  1993,  a  gentleman  who  was  then,  and  I 
think  is  probably  still,  in  the  property  section  there,  a  man. 
named  Steve  Boeri--!  think  he  may  be  the  head  of  the  property 
section  now — he  was  starting  to  look  at  those  taxes  again.   Now 
the  issue  would  bring  in  Proposition  13,  which  of  course  changed 
the  whole  basis  for  assessment  of  real  property.   It's  at  least 
possible  that  a  whole  new  round  of  arguments  would  have  to  be 
fought.  This  time,  the  argument  would  be  whether  or  not 
Proposition  13  provided  still  another  way,  another  limit,  on  the 
way  in  which  they  could  assess  this  property. 

You  see,  what  had  happened  in  the  early  days  was  that  the 
counties  wanted  to  tax  the  properties  in  a  way  in  which  basically 
they  would  be  taxing  the  value  of  the  water  extraction  systems 
that  San  Francisco  and  Los  Angeles  and  East  Bay  developed.   A  man 
named  Bob  Phillips  was  the  general  manager  of  the  Department  of 
Water  and  Power  of  Los  Angeles  back  in  the  sixties.   He  was 
principally  responsible  for  the  negotiation  of  what  ended  up 
being  a  constitutional  amendment  that  was  passed  by  the 
legislature  and  approved  by  the  voters ;  it  established  this 
special  formula  for  taxing  the  properties  of  public  agencies.   In 
effect,  what  it  says  is  there's  a  formula  that  was  established 
for  setting  a  base  year,  and  then  that  base  year  could  be 
escalated  on  a  certain  factor  that  was  set  forth  in  the 
[California]  constitution.   The  assessors  were  limited  to 
assessing  on  that  formula,  or  at  the  market  value,  whichever  was 
lower . 

And  so  the  arguments  that  we  were  fighting  over  with  the 
counties  were  always,  Is  the  market  value  less  than  the  formula 
value?  And  they  would  always  want  to  escalate  up  to  the  formula 
and  then  some,  and  we  would  always  say,  "Wait  a  minute,  the 
market  value  is  less.  The  market  value  of  this  water  right,"  we 



Proposition  13  would  allow  the  assessments  to  escalate  at  a 
rate  that  would  be  less  than  the  Phillips  formula,  but  query  as 
to  where  the  Proposition  13  value  would  be  in  relationship  to 
market  value.   So  the  utility  district  may  now  be  facing  a 
question  of  whether  there's  this  third  basis  for  value.   I  think 
there's  been  some  litigation  involving  San  Francisco's  properties 
up  in  Tuolumne  County  and  probably  in  Alameda  County.   I  believe 
San  Francisco  is  still  taxed  on  more  acreage  in  Alameda  County 
than  any  other  taxpayer,  under  this  same  theory.   So  I  believe 
there's  been  some  more  litigation  in  that  area,  but  frankly,  I've 
kind  of  stopped  paying  attention  to  the  issue,  after  all  of  those 
years  of  battles. 

Bob  Maddow  as  Litigator 

Maadow:   I  told  you  that  I'm  not  really  a  litigator.   I'll  tell  you  one 
little  anecdote  from  all  of  that. 

On  one  particular  day  when  Dave  Wilier  was  our  witness  and  I 
was  examining  him  on  direct  examination,  Dave  had  a  terrible  day. 
He  just  was  not  confident,  he  just  did  not  handle  himself  on  the 
witness  stand  very  well,  either  on  my  direct  or  on  the  cross- 
examination  by  Mr.  Hahn,  or  by  the  man  from  San  Joaquin  whose 
name  just  came  back  to  me:  it's  Terry  Dermody  [spells].   He  was 
deputy  county  counsel  at  that  time. 

We  finished  our  day  in  the  hearings,  and  we  were  staying  at 
the  Red  Lion  Hotel  in  Sacramento  out  near  the  fairgrounds .   We 
went  back  to  our  rooms,  and  I  all  of  a  sudden  just  felt 
exhausted.   I  said  to  Jack,  "Look."  Normally  we  would  meet  right 
after  the  day  and  prepare  for  the  next  day.   I  said,  "I'm  going 
to  need  a  little  time,"  and  I  went  back  to  my  room  and  lay  down, 
because  my  head  was  spinning,  I'm  sure  my  blood  pressure  had  gone 
to  a  thousand.   I  actually  think  I  fell  asleep  for  about  twenty 
minutes,  but  I  left  a  wake-up  call  thinking  I  might  have  that 
happen,  and  I  arranged  to  meet  the  guys  for  dinner. 


So  we  went  down  for  dinner,  and  I  still  had  on  the  suit  and 
tie  and  everything  that  I'd  worn  to  that  day's  hearing.  We  went 
to  someplace  where  they  had  Chinese  food.   Jack  ordered  foil- 
wrapped  chicken.  And  sure  enough,  I  pick  up  one  of  the  things, 
and  you  know  it  comes  in  the  little  envelope,  and  I  touch  it,  and 
it  erupts  on  my  tie.  And  this  gout  of  whatever 's  in  the  foil, 
the  juice  and  all  that,  goes  on  my  tie.  Jack  laughed  and  said, 
"You  must  be  wearing  a  new  tie ! "  Of  course  I  was ,  and  it  was 
stained  beyond  repair. 

Maddow:   But  I  have  to  tell  you,  it  was  perfect,  because  it  brought  me 

back  to  earth,  got  me  out  of  my  funk.  We  had  dinner,  and  after 
dinner,  I  sat  down  with  Dave  Willer--it  was  primarily  me  and 
Dave- -and  I  talked  to  him  a  little  bit,  and  by  golly,  the  next 
day — 

LaBerge:  Coached  him? 

Maddow:   I  didn't- -what  I  tried  to  do  was  to  say,  "Dave,  you  know  this 
stuff.   You  know  the  answers.   You  know  it  better  than  the  man 
who's  cross-examining  you.   And  I  have  a  chance  for  redirect, 
so."  And  he  went  in  the  next  day  and  he  was  great.   He  just 
really  kind  of  pulled  himself  back — it  wasn't  what  I  did,  it  was 
what  he  did. 

But  what  Jack  did  with  that  little  one-liner  of  his  was  to 
break  me  out  of  this  rut  that  I'd  fallen  into  that  day,  and  I 
think  he  just  saved  my  bacon,  you  know.   [laughter] 

LaBerge:  Well,  it's  the  power  of  the  sense  of  humor,  too,  isn't  it?  You 
need  that. 

Maddow:   You  really  do.   And  these  were  hard  days.   We  just  went  at  it 
hammer  and  tong  with  John  Hahn.   He's  a  tough  guy,  and  he's  a 
good  lawyer.   We  really  battled  it  out  with  them,  and  so  these 
were  hard  days.   Especially  for  somebody  like  me  who  wasn't  a 


But  we  learned  a  lot  in  those  days,  and  I  formed  a  very 
healthy  respect  for  the  people  in  the  mountain  counties  and  the 
work  that  they  do,  and  the  relationship  that  they  have  to  that 
utility.  And  vice  versa.   I  think  I  learned  a  lot  about  the 
utility  at  that  time.   I  really  had  to  learn  a  lot  about  how 
water  resources  work  and  a  lot  of  water  law  in  order  to  be  able 
to  deal  with  the  Thayer  water  right,  et  cetera. 

And  it  also  gave  me  an  occasion  to  study  a  lot  of  the 
history  of  the  Mokelumne  system,  and  it's  a  fascinating  history, 
as  is  the  history  of  each  of  the  older  systems.   So  it  was  just  a 
great  grounding  for  anybody  who  tries  to  look  at  the  historical 
and  sort  of  the  policy  side  of  things,  which  has  always  been  kind 
of  my  nature.   So  it  was  terrific  experience.   I  hesitate  to 
claim  it  as  a  great  victory,  because  although  we  did  get  the 
utility  district's  taxes  reduced,  we  always  ended  up  thinking 
that  we  could  have  done  more,  had  we  actually  litigated  those 
cases .   But  I  think  it  was  the  right  thing  to  do  to  not  litigate 
the  cases ,  because  it  preserved  the  working  relationships  between 
the  counties  and  the  utility  district,  and  I  think  that's  very 
important.  You  don't  want  to  be  at  constant  war  with  them.   So  I 
think  that ' s  been  important . 

Hiring  Outside  Counsel 

LaBerge:   Well,  do  you  think  Mr.  Reilley  kind  of  put  you  in  that  situation 
to  give  you  the  experience? 

Maddow:   I  think  he  definitely  did.   There  had  been  an  earlier  round  of 

tax  cases  in  the  sixties  under  another  legal  system,  prior  to  the 
Phillips  formula  and  all  that,  and  he'd  fought  those  battles.   I 
don't  think  he  wanted  to  be  out  front.  He  had  too  many  other 
things  to  do  as  the  district's  general  counsel,  and  I  think  he 
had  a  reasonable  amount  of  faith  in  me.  And  as  I  say,  the  first 
year,  we  kind  of  worked  together,  and  the  second  year,  he  pretty 
much  turned  it  over  to  me.   It  was  great  experience. 


Maddow : 


87  the  same  token,  it  was  a  little  difficult  in  that  I  had 
been  carrying  a  fairly  broad  set  of  responsibilities  at  the 
district  dealing  with  a  wide  variety  of  contract  matters  in 
particular,  and  while  I  was  in  the  tax  cases,  I  just  pretty  much 
had  to  shut  everything  else  down.  That  was  hard  on  my 
colleagues,  and  hard  on  some  of  the  people  who  had  relied  on  me 
for  legal  work.  But  you  end  up  having  to  do  those  things 
sometimes.  It's  hard  in  a  small  office  to  take  on  major 
litigation  projects.  That's  what  I  learned  from  the  tax  cases, 
and  that's  why,  when  I  became  general  counsel,  I  was  a  little 
more  prone  to  look  for  outside  help  on  cases  than  Jack  had  been. 
My  immediate  successor,  Alice  Vilardi,  was  much  more  interested 
in  litigating  things  in-house  if  possible,  and  was  headed  in  a 
direction  of  building  up  the  size  of  the  legal  staff  in  order  to 
be  able  to  carry  more  of  the  litigation  load  and  not  have  to  use 
outside  counsel  as  much  as  I  had  done.  Alice  wasn't  there  long 
enough  for  me  to  be  able  to  comment,  or  maybe  even  for  her  to  be 
able  to  comment,  on  how  well  it  worked.   Bob  Helwick  has  told  me 
that  they  are  still  using  outside  counsel  for  some  things. 

What's  happened,  I  think  basically,  is  that  the  legal 
entanglements  that  entities  like  East  Bay  become  involved  in  now 
are  so  complicated  that  the  big  cases  are  hard  to  litigate 
exclusively  with  your  own  staff,  if  you're  also  trying  to  be 
house  counsel.   So  it's  always  a  balancing  act. 

Well,  I  noticed  there  was--oh,  it  was  like  a  review  of  all  the 
departments.   Mr.  Reilley  had  to  do  a  review  of  the  legal 
department  and  what  they  were  doing,  and  one  of  the  is sues --or 
the  board  must  have  asked  for  this  review—one  of  the  issues  was, 
should  you  be  hiring  so  much  outside  counsel?   Is  it  cost- 
effective?  Or  should  you  be  doing  it  in-house?  And  his 
recommendation  was,  we  should  be  running  the  legal  department 
just  the  way  we  do. 

I  don't  recall  that  specific  incident,  but  I  can  certainly  recall 
the  consideration  of  that  issue  at  a  variety  of  times.   I 
mentioned  before  that  at  the  end  of  the  drought  when  the 
district's  financial  reserves  went  quite  low  and  that  sort  of 


thing,  and  the  Prop.  13  era  came  along,  the  district  went  through 
an  era  which  I  used  to  jokingly  call  the  cut,  squeeze,  and  trim 
era,  when  there  was  a  real  serious  effort  at  cost-cutting  and 
streamlining  and  realigning  things.  That  was  at  a  time  in  the 
late  seventies  and  early  eighties — 

LaBerge:   This  thing  was  1979,  I  just  found  it. 
Maddow:   Yes,  that's  right  in  that  period. 
LaBerge:   It  was  an  organizational  study  of  EBMUD. 

Maddow:   I  don't  remember  the  exact  details — there  were  several 

organizational  studies  that  were  done  over  time,  and  if  I  really 
paid  attention  to  it--.  That  one  may  have  been  headed  up  by  a 
firm  the  first  name  of  which  was  Cresap  [ spelling ]--Cresap, 
McCormick,  and  Padgett.  That  may  have  been  their  version  of  the 
reorganization  study.   And  it  was,  How  can  we  function  better? 
How  can  we  realign,  et  cetera?  And  in  part,  that  was  driven  by 
some  new  board  members  who  had  heard  the  message  of  the  voters  at 
the  Proposition  13  election  and  who  were  aware  that  the  district 
had  some  horrendous  rates.   You  know,  we  came  out  of  the  drought, 
declared  the  drought  over,  and  immediately  ended  up  having  to 
look  at  a  rate  adjustment  because  big  capital  projects  like 
rebuilding  San  Pablo  and  Chabot  Dams  were  being  pursued,  and  the 
district's  financial  reserves  had  been  decimated.   That  rate 
increase  in  1978  was  very  controversial.   It  really  angered  a  lot 
of  the  ratepayers.  As  a  matter  of  fact,  it  brought  us  lots  and 
lots  of  candidates  in  the  1978  election  when  there  had  been 
virtually  no  candidates,  no  contested  seats  before  that. 

So  we  had  a  board  that  was  motivated  to  find  ways  to  do  what 
in  the  nineties  is  called  downsizing,  and  to  streamline  and 
reorganize.   And  there  were  a  lot  of  things  that  were  done.   But 
the  legal  department  by  that  time—let's  just  think  about  that  a 
second—by  that  time,  the  legal  department  consisted  of  Jack, 
Frank,  me,  and  Bob  Helwick.   It  didn't  change.   In  1981,  we  added 
a  fifth  attorney,  Nancie  Ryan.   Nancie  McGann  when  we  hired  her, 
now  Nancie  Ryan.  That  was  the  first  time  there  had  ever  been 


five.   I  think  I  was  the  first  of  the  fourth  attorneys.  Wayne 
Witchez  left,  and  then  Bob  Helwick  came  in  to  be  four,  Nancie 
came  in  to  be  five.  Jack  basically  kept  the  size  of  the  office 
the  same. 

What  we  did  with  outside  counsel  in  those  days  was  largely 
in  the  insurance  defense  cases,  tort  defense  cases.  We  didn't 
have  the  huge  resources  litigation  matters  at  that  time.   The 
only  big  resources  case  we  had  going  was  the  American  River 
litigation,  but  it  was  not  a  big  case  then.   It  was  a  critically 
important  case,  but  it  was  Bob  and  Jack  writing  briefs,  because 
it  was  all  being  handled  as  a  matter  of  law  at  that  point.  And 
when  we  have  our  day  when  we're  just  going  to  talk  about  the 
American  River,  I'll  talk  more  about  that. 

In  1984,  when  I  took  over,  in  the  first  week  I  was  general 
counsel,  I  think  it  was  the  third  day,  all  of  a  sudden,  that  case 
went  on  the  fast  track  towards  trial.   It  was  going  to  be  a  huge 
trial,  and  there  had  never  been  any  discovery.   There 'd  never 
been  any  workup  towards  trial,  and  there  was  no  way  that  the 
lawyers  we  had  in  the  office  at  that  time — Bob,  Frank,  Nancie, 
and  myself — that  we  were  going  to  be  able  to  handle  that. 

And  so,  for  the  first  time,  we  went  to  outside  counsel  for  a 
big,  significant  matter,  and  we  went  to  the  man  who  at  that  time 
I  considered  to  be  California's  leading  water  lawyer,  Art 
Littleworth  of  Best,  Best  &  Krieger  in  Riverside,  to  help  us  out. 
It  was  the  right  thing  to  do.  But  it  set  a  pattern  that  made 
some  directors  and  managers  uncomfortable,  because  we  started  to 
spend  a  lot  of  money  with  outside  counsel. 



[Interview  4:  March  27,  1997]  ## 

Historical  Background 

LaBerge:   We  decided  that  we  would  talk  about  the  American  River  today,  so 
why  don't  you  give  me  the  background  that  you  had  when  you  came 
to  the  district? 

Maddow:   I  came  in  May  of  '72. 

LaBerge:   The  district  already  had  its  contract  with  the  Bureau  of 

Reclamation.  Had  EOF  [Environmental  Defense  Fund]  already  filed 
the  suit? 

Maddow:   No.   That  happened  shortly  thereafter. 
LaBerge:   What  was  your  involvement? 

Maddow:   Well,  let  me  take  a  step  back  and  then  come  forward.  The 

congressional  authorization  for  the  Auburn-Folsom  South  unit  of 
the  Central  Valley  Project  was,  I  think,  in  1965,  and  shortly 
thereafter,  '67  or  '68,  the  Bureau  of  Reclamation  began 
construction  of  the  Folsom  South  Canal.  Auburn  Dam  was  also 
getting  started  at  that  time.   It  subsequently  was  stopped,  and 
I'll  touch  more  on  that  a  little  later,  but  the  Folsom  South 
Canal  was  constructed—actually,  I  think  25  or  27  miles  of  the 


canal  was  built,  basically  from  Nimbus,  the  afterbay  reservoir 
below  Folsom  Dam,  down  toward  the  southern  parts  of  Sacramento 

The  utility  district  had  decided  back  in  the  sixties,  I 
guess,  that  its  future  water  supply  demand  projections 
outstripped  its  supply,  its  safe  yield  from  the  Mokelumne  system, 
and  so  an  alternative  or  supplemental  supply  was  needed.  The 
goal  was  to  obtain  one  of  quality  as  close  to  that  of  the 
pristine  Mokelumne  quality  as  possible.   So  the  district's  water 
supply  planners  and  its  lawyers  began  negotiations  with  the 
United  States  to  try  to  buy  water  from  the  Folsom  South  Canal. 
The  American  is  a  high-quality  stream,  and  by  taking  the  water 
out  of  the  canal  it  was  thought  that  you'd  be  getting  about  as 
high  a  quality  water  as  the  Bureau  of  Reclamation  could  produce, 
depending  upon  where  you  got  the  water  from  the  canal. 

Those  negotiations  were  proceeding  through  the  late  sixties . 
Jack  Reilley  was  the  utility  district's  lawyer  who  worked  on 
those  negotiations,  along  with  people  from  the  engineering 
function.  And  I  think  there  may  have  been  consultants  who  were 
also  involved — Norm  Murray  and  Harvey  0.  Banks. 

The  bureau's  negotiating  team  included  a  well-respected 
attorney  named  Rita  Singer.1  I  cannot  verify  this,  but  I  was 
told  that  when  the  negotiation  meetings  were  in  Oakland,  she 
would  bring  empty  bottles  with  her  and  fill  them  with  water — 
high-quality  Mokelumne  River  water—at  a  faucet  next  to  the 
district's  parking  lot! 

At  the  same  time  that  the  utility  district  was  trying  to 
contract  for  water  supply  from  that  canal,  others  were,  as  well, 
including  Sacramento  County,  and  there  were  interests  from  both 
San  Joaquin  and  El  Dorado  Counties,  which  were  also  quite 

lSee  Rita  Singer,  Oral  History  Interview,  Conducted  1991  by  Malca 
Chall,  Regional  Oral  History  Office,  University  of  California,  Berkeley, 
for  the  California  State  Archives  State  Government  Oral  History  Program. 


At  that  time,  it  was  believed  that  the  Auburn-Folsom  South 
unit  would  be  a  productive  unit  because  Auburn  Dam  was  conceived 
as  having  a  fairly  significant  water  supply  yield,  and  there  were 
entities  in  all  three  counties--El  Dorado,  Sacramento,  and  San 
Joaquin — that  wanted  some  of  that  yield,  as  did  the  utility 
district.   I  think  it  was  in  1968  that  an  organization  that  was 
called- -the  acronym  was  SRDWA,  S-R-D-W-A. 

LaBerge:   Oh.   Sacramento-- 

Maddow:   Sacramento  River  Delta  Water  Association?  I  think  that's 

probably  right.  And  SRDWA,  as  I  recall,  was  basically  El  Dorado, 
San  Joaquin,  and  Sacramento  Counties  or  entities  from  within 
those  counties .  What  they  were  trying  to  do  was  to  get  an 
agreement  with  the  bureau  that  would  enable  them  to,  in  essence, 
protect  their  right  to  contract  for  some  of  that  water,  the 
theory  being  that  they  were  the  counties  or  the  areas  from  which 
at  least  some  of  that  water  originated  and  they  should  have  sort 
of  a  local  priority  towards  the  contract  negotiations .   There  are 
statutory  priorities  in  the  water  code  that  are  claimed  by 
counties  and  agencies  within  watersheds  from  which  Sierra  streams 
originate . 

There  were  others  who  were  also  interested.   Auburn  and  the 
Folsom  South  Canal  were  thought  as  providing  the  backbone  for 
something  called  the  East  Side  Division  of  the  Central  Valley 
Project  service  area.   That  would  have  been  a  way  in  which  to 
move  federal  water  south  in  a  facility  that  would  be  farther  east 
than  the  existing  water  conveyance  facility  (the  Delta  Mendota 
Canal).   And  there  was  a  group  called  the  East  Side  Project 
Association,  or  something  like  that,  which  was  also  interested  in 
dealing  with  the  bureau. 

Agreement  with  U.S.  Bureau  of  Reclamation  and  Others.  1968 

Maddow:   But  to  make  stories  that  I  only  know  bits  and  pieces  about  short, 
the  utility  district  entered  into  an  agreement  with  the  Bureau  of 
Reclamation,  SRDWA,  and  the  East  Side  Division  group  that  was  in 
effect  a  way  in  which  to  say  there  will  be  contracts  available 
for  these  various  entities,  and  here  will  be  their  relative 
relationship  with  one  another.   And  that  agreement  provided  for 
the  utility  district  to  have  the  right  to  contract  for  I  believe 
it  was  70,000  acre-feet  of  American  River  water,  regardless  of 
what  happened  with  the  balance  of  the  arrangements  being  made  by 
the  bureau.  And  then,  under  some  contingencies,  the  district 
would  have  the  right  to  an  additional  80,000,  making  a  total  of 
150,000  acre-feet  or  134,000,000  gallons  a  day  on  an  average 
annual  basis. 

State  Water  Resources  Control  Board  Decisions  1356  and 

Maddow:   That  agreement  was  then  blessed,  if  you  will,  or  acknowledged  by 
the  State  Water  Resources  Control  Board,  when  it  decided  on  the 
water  rights  applications  that  had  been  filed  by  the  Bureau  of 
Reclamation  for  Auburn  Dam,  in  what  was  called  Decision  1356.   I 
think  1356  was  in  "68  or  '69,  right  along  in  there.   So  after  the 
four-party  agreement  and  Decision  1356  took  place,  the  utility 
district  executed  its  federal  water  supply  contract  in  1970. 

When  the  state  board  decided  1356,  it  reserved  jurisdiction 
with  regard  to  instream  flow  needs,  recreational  values,  fish 
values,  et  cetera,  on  the  lower  American.   There  was  a  separate 
water  rights  proceeding,  and  that  decision  was  made,  I  believe, 
in  April  of  1972.   It  was  called  Decision  1400. 

LaBerge:   Okay.   I've  heard  of  that. 


Maddow:   And  Decision  1400  was  noteworthy  because  for  one  of  the  first 

times,  maybe  the  first  time  in  a  really  significant  decision,  the 
state  board  adopted  what  was  basically  an  instream  protective 
flow  regime,  which  said  in  essence  that  the  federal  government's 
right  to  take  water  into  its  system,  assuming  that  the  Auburn.  Dam 
was  constructed,  was  going  to  be  limited  in  ways  which  were 
intended  to  protect  fisheries  and  recreation  values.  There  were 
flow  standards  that  were  set  up,  et  cetera. 

East  Bay's  right  to  take  did  not  appear  to  be  impacted  by 
that  water  right,  because  East  Bay's  contract  was  independent  of 
the  existence  of  Auburn  Dam.  East  Bay  contracted  for  water  from 
the  Auburn-Folsom  South  unit,  and  East  Bay  was  careful  to  be  sure 
that  whether  or  not  Auburn  Dam  ever  got  completed,  East  Bay  could 
in  fact  get  70,000  acre-feet  of  water  and  then  upon  the 
occurrence  of  these  other  contingencies  or  the  lapse  of  the 
effectiveness  of  those  contingencies,  it  could  go  up  to  150,000. 
So  East  Bay  thought,  "We're  okay.   The  Auburn  decision  doesn't 
really  impact  us.   We're  okay." 

And  so  the  utility  district  signed  the  contract,  and  late  in 
1972  the  bureau  announced  that  in  fact  it  was  ready  to  deliver 
water  to  the  utility  district  at  these  gates,  turnout  gates, 
structures  in  the  side  of  the  Folsom  South  Canal,  down  near  Grant 
Line  Road  in  southern  Sacramento  County.   The  significance  of 
that  was  it  meant  that  starting  in  1973,  the  utility  district  had 
to  start  paying  for  the  water,  had  to  pay  for  it,  regardless  of 
whether  it  takes  it. 

I  can  remember  in  the  first  month  that  I  was  there  in  May  of 
1972,  when  I  started  to  hear  about  this  to  me  unknown  thing 
called  the  American  River,  one  of  the  things  that  people  were 
talking  about  was  that  there  was  this  man  named > [Ronald]  Robie,1 
who  was  a  member  of  the  state  board.   He  was  vice  chair  at  that 
time,  and  he  had  written  a  paragraph  that  got  into  Decision  1400. 

Ronald  B.  Robie,  "The  State  Department  of  Water  Resources,  1975- 
1983,"  an  oral  history  conducted  in  1988,  Regional  Oral  History  Office,  The 
Bancroft  Library,  University  of  California,  Berkeley,  1989. 


It  said  in  effect  that  it  was  inappropriate  that  the  utility 
district  contract  with  the  federal  government  to  take  the  water 
out  at  Folsom  South  Canal  because  that  meant  the  water  would  not 
flow  down  the  lower  American  River,  where  it  could  be  put  to 
multiple  beneficial  uses,  as  he  put  it,  and  the  utility  district 
could  pick  it  up  later. 

The  utility  district  didn't  agree  with  that.  It  thought 
that  Robie  had  thrown  in  something  that  was  unnecessary,  and 
there  was  a  fair  amount  of  consternation  about  it  because  he  was 
a  respected  member  of  the  state  board,  with  considerable  clout. 

LaBerge:   Jack  Reilley  talked  about  that.  He  was  still — 
Maddow:   I  think  livid  is  the  right  word. 
LaBerge:   Fuming  [laughing]. 

Maddow:   I  don't  know  whether  Jack  believes  this  or  not,  but  in  the  mind 
of  some  people,  the  Robie  paragraph  spawned  the  American  River 
litigation  because  it  was  in  June  of  that  year  that  the 
Environmental  Defense  Fund,  the  Oceanic  Society,  the  Save  the 
American  River  Association,  and  four  individuals  brought  suit  in 
state  court,  arguing  that  the  utility  district  should  not  be 
taking  water  from  Folsom  South  Canal,  that  the  decision  as  to  the 
point  of  diversion  was  inappropriate  as  a  matter  of  state  law, 
and  that  perhaps  equally  importantly  the  utility  district 
shouldn't  be  taking  any  more  water  anyway  because,  after  all,  it 
could  reclaim  wastewater  and  achieve  or  accomplish  the  same  water 
supply  needs  that  the  supplemental  supply  was  intended  to  meet. 

Litigation;  Environmental  Defense  Fund  (EDF)  I.  1972 


Maddow:   The  individuals  who  filed  that  suit- -I  think  I  can  remember  them 
all.  Two  were  people  here,  quite  well  known  locally.   Jean  Siri, 
who  is  now,  I  think,  a  member  of  the  East  Bay  Regional  Park 
District  board.   She  was  an  El  Cerrito  city  councilwoman  for  many 
years,  very  active  in  environmental  organizations,  and  is  a 
delightful  person.   Makes  no  bones  about  the  fact  that  she  is  a 
dedicated  environmentalist.  She's  a  good  person.  Her  husband  is 
Dr.  Will  [William]  Siri,1  who  is  one  of  the  founders  of  the  Save 
the  Bay  Association,  I  think,  and  is  credited  with  much  of  the 
work  that  led  to  the  creation  of  BCDC  [Bay  Conservation  and 
Development  Commission].   They're  good  people. 

And  then  there  was  a  woman  named  Lucretia  Edwards ,  who  was 
from  Richmond,  who  is  still  active  in  a  number  of  environmental 
organizations . 

Gerry  Meral,  Gerry  with  a  "G,"  who  later  served  as  deputy 
director  of  the  Department  of  Water  Resources  when  Ron  Robie  was 
its  director  and  who  is  now  the  director  of  the  Planning  and 
Conservation  League.   He  was  at  that  time  staff  scientist  for  the 

The  fourth  person,  I  think,  was  named  Peter  Zars,  Z-a-r-s. 
I  think  he  was  a  member  of  the  Oceanic  Society.   At  some  point 
they  dropped  out  of  the  case,  and  so  did  he,  and  I  don't  remember 
the  details  of  that.   But  I  think  he  was  the  fourth  person. 

In  any  event,  at  the  time  I  arrived  at  East  Bay,  the  utility 
district  had  started  work  on  implementing  the  contract.   It  had 

'See  William  E.  Siri,  "Reflections  on  the  Sierra  Club,  the  Environment 
and  Mountaineering,  1950s- 1970s, "  Regional  Oral  History  Office,  The 
Bancroft  Library,  University  of  California,  Berkeley,  1979. 


formed  a  special  unit  within  the  engineering  organization,  headed 
by  a  gentleman- -another  Old  Blue — named  Rich  Kolm,  who  was  then 
and  is  now  one  of  my  neighbors—our  children  went  to  school 
together.  His  daughter,  Peggy,  who  graduated  from  Berkeley,  got 
her  Ph.D.  in  molecular  biology  from  M.I.T.  in  June,  1997.  The 
district  had  hired  the  consulting  firm  of  Jones  &  Stokes  to  write 
an  environmental  impact  report.  If  you  remember,  we  talked 
earlier  about  the  fact  that  we  were  just  entering  into  the  era  of 
environmental  law. 

Environmental  Impact  Reports 

Maddow:   And  right  away,  evaluations  were  underway  to  determine  the  best 
way  to  route  an  aqueduct  from  the  turnout  point  on  the  Folsom 
South  Canal  to  the  East  Bay  service  area.  The  district  was  at 
that  time  looking  hard  at  an  alternative  which  would  have 
involved  building  a  pipeline  to  that  turnout  point  in  southern 
Sacramento  County,  going  basically  directly  west,  crossing  under 
the  Sacramento  River  in  a  siphon  structure,  proceeding  west  to  a 
point  where  the  right  of  way  would  intersect  with,  I  believe, 
then  an  abandoned  right  of  way  at  the  old  Sacramento  Northern 
Railroad,  which  headed  basically  on  a  straight  line—what  would 
that  be?--southwest  toward  a  point  I  think  down  near  Chipps 
Island.   It  would  have  had  to  come  across,  under  the  western 
Delta,  in  probably  a  big  tunnel  structure,  and  then  popping  up  in 
Contra  Costa  County  and  tieing  into  the  Mokelumne  aqueduct  right 
of  way. 

So  that  work  was  underway,  EIR  work,  et  cetera,  when  the 
lawsuit  was  filed.   The  lawsuit  didn't  stay  that  work  or  anything 
like  that,  but  after  not  too  much  more  time  elapsed  it  became 
evident  that  the  district  was  going  to  run  into  problems  in 
proceeding  with  that  work.   I  don't  remember  the  exact  sequence, 
but  the  work  was  in  effect  put  on  hold  somewhere  along  in  the 
early  seventies.   I  don't  recall  whether  that  EIR  was  ever 


completed.   I  don't  believe  a  draft  EIR  was  ever  issued  for 
public  review. 

Sacramento  County  Joins  Plaintiff  Group 

Maddow:   From  the  legal  perspective,  initially  it  was  just  the  plaintiffs 
whom  I  mentioned.   Several  months  later,  six  months  later  maybe, 
four  months  later,  something  like  that,  Sacramento  County 
intervened  in  the  case,  with  their  intervention  handled  by  the 
county  counsel's  office.   The  county  counsel  was  a  man  named  Lee 
Elam.   And  their  intervention  took  a  different  tack  than  the 
environmental  groups  had  started  with.  They  in  essence  said  that 
the  county  had  a  particular  interest  to  protect  in  the 
recreational  and  aesthetic  values  of  the  lower  American  River. 
They  had  invested  in  a  parkway  along  there.   They  had  done  a  lot 
of  things,  spent  money,  et  cetera,  to  protect  that  or  to  achieve 
the  values  that  the  river  provided. 

There  was  incredible  irony  in  Sacramento  County's  entrance 
into  this  case,  because  it  too  was  counting  on  a  water  supply 
from  the  Folsom  South  Canal- -a  bigger  supply  than  East  Bay  MUD's. 
When  the  bureau  built  the  canal,  it  constructed  a  5-gate  turnout 
structure  for  the  district;  about  100  yards  north  it  built  a  7- 
gate  turnout  to  serve  the  Sacramento  County  entitites  for  which 
the  water  agency- -the  board  of  supervisors  was  its  legislative 
body- -was  attempting  to  contract  for  over  200,000  acre  feet  per 
year,  as  I  recall. 

The  county ' s  argument  was  that  the  utility  district ' s 
diversion  of  water  upstream  of  the  parkway  would  be  an 
unreasonable  method  of  diversion  of  water  in  that  it  would 
deprive  the  parkway  region  of  the  lower  American  of  some  of  the 
flows  in  a  manner  that  was  in  violation  of  the  state 
constitution.  The  utility  district  filed  demurrers.  We  in 
essence  said,  "These  plaintiffs  can't  state  a  cause  of  action." 
I've  forgotten  the  exact  sequence.   I  believe  the  demurrers  were 


filed  prior  to  Sacramento's  intervention,  and  then  a  subsequent 
demurrer- -I've  forgotten  the  exact  sequence. 

But  in  any  event,  it  all  culminated  in  a  series  of  amended 
complaints,  et  cetera.  The  district's  original  demurrer  against 
the  environmental  groups  was  sustained.  They  amended,  they 
incorporated  Sacramento's  arguments  about  the  recreational  and 
aesthetic  values  into  their  amended  complaint;  the  utility 
district  again  filed  a  general  demurrer  saying,  "These  plaintiffs 
can't  state  this  cause  of  action  against  this  defendant." 

Judge  Brunn  Sustains  Demurrer,  1973 

Maddow:   That  general  demurrer  was  sustained  by  the  Alameda  County 

Superior  Court.  The  judge  who  heard  the  matter  was  a  man  named 
George  Brunn,  who  was  actually  a  municipal  court  judge  from  this 
district,  Berkeley  district.   He  had  been  sitting  on  special 
assignment  on  the  superior  court  for  a  short  time.   I've 
forgotten  the  exact  details.  At  one  time,  I  think  I  told  someone 
he  was  up  there  for  one  day.   I  think  that's  incorrect. 

But  in  any  event,  through  some  sort  of  luck  of  draw 
circumstance,  he  ended  up  with  this  case.  My  recollection  is 
that  we  got  the  judge's  decision  sustaining  the  demurrer  in  the 
early  part  of  1973,  March,  April,  somewhere  along  in  there.   And 
he  told  us  to  prepare  a  judgment,  and  we  immediately  did.   We 
didn't  send  it  off.   I  was  told  to  take  this  up  to  the  court, 
submit  it  to  the  judge,  wait  until  he  signed  it--you  know, 
because  the  utility  district  really  wanted  this . 

So  here  I  am.   I  had  been  at  work  there  a  short  while.   I 
was  not  a  litigator.  Hadn't  really  been  terribly  involved  in 
this  case  because  Jack  had  been  handling  it  himself.  We  all  knew 
something  about  the  case  because  all  the  lawyers  in  the  office  at 
that  time—Frank  Howard,  Wayne  Witchez,  Jack,  and  I--each  of  us 
took  a  part  of  the  writing  of  the  briefs  and  that  sort  of  thing. 


We  each  had  our  section.   But  I  was  a  little  bit  new  to  all  of 

So  I  walk  in,  hand  the  clerk  the  judgment  and  go  sit  outside 
and  wait.  After  a  few  minutes,  the  clerk  says,  "The  judge  would 
like  to  see  you."  And  I  go,  "Oops I  Now  what?"  I  went  in,  and 
he  absolutely  wanted  to  talk  about  this  case,  because  as  a  muni 
court  judge,  he  said,  you  don't  get  this  sort  of  thing  every  day. 
He  told  me  how  he  had  taken  the  briefs  home  at  night  and  he  had 
spent  the  weekends  and  he  had  put  all  this  time  into  writing  his 
decision,  and  he  had  written  a  very  thorough  decision. 

He  was  particularly  cognizant  of  the  limitations  of  what  a 
superior  court  judge  could  do  in  this  challenge  to  what  was 
basically  this  combination  state  and  federal  law  scheme  that  had 
evolved  through  this  water  supply  contract,  and  he  noted  where 
those  limitations  were.   He  wrote  what  I  thought  was  just  an 
excellent  decision,  recognizing  the  limitations  on  what  a  trial 
court  could  do.   And  he  ruled  in  the  utility  district's  favor  and 
said,  "Those  plaintiffs  couldn't  state  those  causes  of  action 
against  this  district." 

In  effect,  he  was  saying  there  is  a  partnership  now,  a 
contractual  arrangement,  between  the  water  district  and  the 
federal  government  that  is  principally  a  creature  of  federal  law, 
and  these  plaintiffs  have  only  sued  the  local  agency.   They've 
got  to  get  at  the  other  entity  as  well.   They've  got  to  get  at 
the  federal  government,  and  they  can't  do  that  in  state  court. 
And,  in  effect,  federal  law  preempts  them  from  applying  or 
seeking  to  have  state  law  applied  to  just  what  the  utility 
district  is  doing. 

Similarly,  he  said  that  with  regard  to  the  argument  that  the 
utility  district  should  be  reclaiming  wastewater  in  lieu  of 
seeking  an  additional  surface  water  supply,  he  said  there  was  a 
comprehensive  system  of  law  under  which  that  issue  needs  to  be 
addressed  before  state  agencies,  rather  than  being  brought 
initially  to  the  court.  And,  in  effect,  he  ruled  that  the 
plaintiffs  had  failed  to  exhaust  their  administrative  remedies. 


They  should  have  brought  that  matter  before  the  State  Water 
Resources  Control  Board. 

The  plaintiffs  appealed.  The  case  began  what  I  have 
sometimes  referred  to  as  the  seven-year  march,  up  and  back  to 
various  and  sundry  appellate  courts.  Bob  Helwick,  who  came  to 
the  district  in  1976,  did  much  of  the  research  and  writing  from 
the  time  he  arrived  until,  well,  Bob  actually  has  done  most  of 
the  writing  in  the  case.  The  utility  district  was  successful  in 
the  court  of  appeal.  The  case  went  to  the  state  supreme  court  in 
what  is  commonly  known  as  EDF  I. *  I  think  it '  s  in  Volume  20  of 
California  Third. 

In  effect,  Judge  Brunn's  ruling  on  our  demurrer  stood  up, 
and  his  arguments  about  both  federal  preemption  and  exhaustion  of 
administrative  remedies  were  sustained. 

LaBerge:  When  he  called  you  in  to  talk  to  you,  is  there  more  on  that 
story?  Like,  did  he  ask  you  questions  that — 

Maddow:   He  wanted  to  talk  about  the  case.   He  wanted  to  talk  about  this 
federal  contract  relationship.  He  wanted  to  know  why  I  thought 
these  plaintiffs  had  chosen  to  not  sue  the  federal  government  and 
to  bring  the  whole  action  in  federal  court.   I  don't  remember 
exactly  how  I  responded  at  that  time,  but  they  made  a  conscious 
decision  at  the  very  get-go  that  where  they  wanted  this  case  to 
be  decided  was  in  a  state  court,  on  a  state  law  basis,  because 
the  whole  area  of  federal  law  was  one  in  which  they  were  afraid 
that  they  could  not  prevail.   They  frankly  thought  they  had  a 
better  shot  of  prevailing  by  stopping  the  local  agency  from  being 
able  to  contract  with  the  federal  government,  rather  than 
stopping  the  federal  government  from  being  able  to  contract  with 
a  local  agency.   I  recall  discussing  that  with  Judge  Brunn. 

I  also  recall  Judge  Brunn  being  concerned  about  the  thought 
that  wastewater  reclamation  could  be  a  substitute  for  what  the 
utility  district  had  identified  as  future  drinking  water  needs. 

.  Inc.  v.  EBMUD  (1977)  20  Cal.  3d  327. 


The  facts  hadn't  ever  been  argued  in  any  of  that,  but  I  remember 
that  he  had  a  concern  about  that  because  he  didn't  understand  it. 

There's  not  really  a  whole  lot  more  to  that  story,  but  it 
was  fascinating  to  me  that  here  we  had  a  judge  who  had  never 
really  seen  anything  like  this,  who  wrote  what  I  still  consider 
to  be  the  best  opinion  that's  ever  been  written  in  the  matter. 
We've  had  lots  of  other  opinions,  but  I  just  thought  he  did  a 
heck  of  a  job. 

LaBerge:   What  about  that  wastewater  issue?  Was  that  really  a  non-issue? 

Maddow:   No,  I  believe  that  these  plaintiffs  were  very  serious  about  that 
issue.  But  they  never  were  able  to  get  it  started  from  a 
litigation  standpoint.   In  other  words,  Brunn's  decision  stood  up 
and  was  sustained  both  in  the  court  of  appeal  and  in  EDF  I,  by 
the  state  supreme  court.   In  effect,  later,  when  they  were 
allowed  to  amend  their  complaint  after  EDF  II,  that  whole  issue 
had  dropped  out  of  the  case. 

Now,  reclamation  has  certainly  not  disappeared,  and  the 
utility  district  is  one  of  the  leaders  in  the  field  of 
reclamation.   It's  just  that  it  is  not  being  approached  through 
the  legal  avenue  that  the  Environmental  Defense  Fund  tried  to  set 
up  at  the  beginning.   Instead,  reclamation  is  being  seen  as  a 
part  of  alternatives  analysis  when  water  projects  are  evaluated. 
In  other  words,  there  is  a  type  of  focus  on  reclamation  that  EDF 
thought  was  appropriate.   It's  just  that  in  today's  world  it 
comes  later  in  the  project  planning  process  than  they  were,  I 
believe,  trying  to  advocate  when  they  initiated  that  part  of  the 

LaBerge:   You  were  talking  about  Bob  Helwick  and  the  seven-year  march. 

Maddow:   The  case  was  not  real  active.   The  utility  district  was  not  at  a 
point  where  it  was  really  pressing  forward  with  planning  to 
implement  the  American  River  project.   In  part,  that  was  because 
the  litigation  was  still  going  on,  and  in  part  because  the 
utility  district  was  otherwise  occupied.   Certainly,  there  was  an 


interest  in  it.   I  mean,  after  all,  in  1976,  '77,  and  '78  we  went 
through  this  horrendous  dry  cycle,  and  we  all  knew  we  had  to  get 
back  to  the  American  issues.  But  while  the  case  was  still  on 
appeal  there  was  such  a  cloud  hanging  over  the  district ' s  ability 
to  proceed  that  it  was  not  actively  pursuing  the  project  at  that 

U.S.  Supreme  Court  and  the  Delta  Decisions 

Maddow:   Now,  after  the  first  decision,  EDF  sought  a  writ  of  certiorari 
from  the  United  States  Supreme  Court  at  that  point.  And 
fundamentally  they  were  concerned --well,  they  were  hoping  to  get 
the  Supreme  Court  to  review  this  question  of  whether  or  not 
federal  law  preempted  their  argument  in  which  they  were  trying  to 
attack  the  utility  district's  ability  to  contract  with  the 
federal  government. 

At  the  same  time  that  the  Supreme  Court  had  EDF's  certiorari 
petition  up  there,  the  court  got  what  became  the  case  of  the 
United  States  v.  California.1  that  grew  out  of  the  "Delta 
decisions."   You  know,  there  was  this  series  of  state  board 
decisions  concerning  export  of  water  from  the  Delta  by  the  state 
and  federal  government.  The  decisions  were  challenged.   My 
recollection  is  that  in  the  Delta  decisions,  U.S.  v.  California. 
I  think  there  were  something  like  twelve  lawsuits  that  all  were 
treated  as  a  consolidated  case. 

In  any  event,  there  was  a  federal  preemption  question  that 
was  right  at  the  heart  of  that  case,  as  well.   The  United  States 
Supreme  Court  decided  U.S.  v.  California  I  think  in  '78  and  in 
effect  said  there's  a  role  for  state  law  in  dealing  with  federal 
water  projects,  and  the  role  in  essence  is  that  state  law  will 
govern  the  activities  of  the  Bureau  of  Reclamation  with  regard  to 
water  rights,  water  supply,  water  quality,  except  when  the 

^California  v.  United  States  (1978)  438  U.S.  645 


exercise  of  state  law  would  be  inconsistent  with  congressional 
actions,  with  specific  federal  legislation. 

Well,  the  U.S.  Supreme  Court  then  disposed  of  EDF's 
petition1  for  certiorari  by  sending  the  case  back  to  the  state 
supreme  court  for  reconsideration  in  light  of  U.S.  v.  California. 

LaBerge:   Was  that  the  title  of  that  case,  U.S.  v.  California? 

Maddow:    I  think  so.   It  was  either  U.S.  v.  California  or  California  v. 

LaBerge:   Is  that  the  Racanelli  decision? 

Maddow:   Oh,  no.   Racanelli  is  the  decision  on  the  next  generation  of 

Delta  water  cases.   This  decision  grew  out  of  the  earlier  round 
of  what  we  now  call  Bay-Delta.  We  didn't  call  it  Bay-Delta  in 
those  days.   We  called  it  the  Delta  decisions  in  those  days.   I 
think  we're  dealing  with  Decision  1378  in  the  Delta  decisions, 
and  Racanelli  was  dealing  with  Decision  1485. 

Litigation;  EOF  II 

Maddow:   The  case  came  back  to  the  state  supreme  court.   It  was  the  [Chief 
Justice]  Rose  Bird  court.  Bob  Helwick  argued  the  case.   I  still 
remember  that  he  stood  up  and  was  ready  to  talk,  and  Justice  Bird 
wasn't  ready  to  have  him  start  talking  yet.   I  remember  how 
gracious  she  was  in  saying,  "Just  a  moment,  please,  Mr.  Helwick." 
Somehow,  that's  kind  of  rivetted  in  my  mind. 

The  supreme  court  this  time  ruled  that  these  plaintiffs 
could  state  a  cause  of  action  against  the  utility  district.2 

'439  U.S.  811  (1978). 

1EDF  II  (EDF,    Inc.    v.    EBMUD  (1980)    26   Cal.    3d   183) 



Maddow:   --  which  was  written  by  Justice  [William]  Clark,  who  was  a 

[Governor  Ronald]  Reagan  appointee  to  this  court  and  subsequently 
was  in  the  Reagan  cabinet,  wasn't  he? 

LaBerge:   Yes. 

Maddow:   I've  forgotten  exactly  what  his  position  was.1  Maybe  Secretary 
of  Agriculture?  I've  forgotten.   I  should  remember  that.   I 
think  he  was  Secretary  of  Interior.   But  in  effect  the  court  held 
that  the  plaintiffs  could  allege  that  the  utility  district's 
diversion  of  water  upstream  of  the  lower  American  River 
constituted  an  unreasonable  method  of  diversion  of  water,  under 
Article  X,  Section  2  of  the  state  constitution  and  the  parallel 
statute,  which  is  Water  Code  Section  100. 


Now,  up  until  then,  what  the  appellate  decisions  had  said 
was  that  these  plaintiffs  couldn't  seek  the  aid  of  the  courts  to 
interrupt  or  interfere  with  or  examine  the  decision  of  the 
utility  district  in  its  efforts  to  contract  with  the  federal 
government.   With  this  decision  now  they  got  the  opportunity  to 
question  those  decisions.   They  amended  their  complaint,  the 
utility  district  demurred,  arguing  a  whole  series  of  arguments 
that  were  fairly  similar  to  what  had  been  argued  prior  to  EDF  II, 
those  demurrers  were  overruled,  and  my  recollection  is  that  that 
was  probably  in,  like,  1981,  somewhere  along  in  there. 

And  all  along  is  Bob  Helwick  still  doing  the — ? 

Bob  was  carrying  the  bulk  of  the  writing  load.   Jack  was  the  key 
strategist.   I  had  a  role  in  it  in  the  sense  that  I  was  part  of 
the  office,  and  Jack  spoke  to  me  in  regard  to  the  strategic  and 
tactical  stuff.   But  Bob  was  the  key  writer.   Bob  is  far  more  a 
litigator  than  I  ever  was,  and  from  the  very  beginning  Jack  had 

William  Clark  served  as  Secretary  of  Interior,  Advisor  to  President 
for  National  Security  Affairs,  and  Deputy  Secretary  of  the  Department  of 


him  doing  research  and  writing  on  this  case.   It  was  always  sort 
of  planned  that  way. 

LaBerge:   And  is  he  the  one  who  did  the  argument,  too? 

Maddow:   He  argued  the  case  before  the  state  supreme  court,  yes,  and  in 
other  forums;  Jack  argued  the  earlier  phases,  but  Bob  carried 
more  of  the  load  later. 

LaBerge:   Okay. 

Water  Action  Plan  under  General  Manager  Jerrv  Gilbert 

Maddow:   So  after  our  demurrer  was  overruled  there  in  '80,  at  this  point 
the  utility  district  was  in  the  post-drought  period.   It  had 
hired  a  new  general  manager,  Mr.  [Jerome]  Gilbert,  who, 
ironically  enough,  had  been  the  executive  officer  of  the  State 
Water  Resources  Control  Board  at  the  time  the  Decision  1400  was 
written.   He  and  Jack  Reilley  and  I  had  a  couple  of  interesting 
and  sort  of  never  finished  conversations  about  the  famous  Robie 
paragraph  [laughing],  which  Jack  was  still  livid  about.   Jerry 
disclaimed  any  responsibility  for  it.  And  accurately  so.   It  was 
really  Robie 's  work. 

In  any  event,  Jerry  Gilbert  was  much  more  active  in  regard 
to  the  district's  water  supply  planning  in  his  early  years  with 
the  district  than  Mr.  Harnett,  his  predecessor,  had  been  in  his 
later  years.   Jack  Harnett  had  tried  mightily  to  get  this 
contract  off  the  ground  and  was  frustrated  through  this 
litigation  and  a  variety  of  political  developments,  and  so  I 
always  think  he  went  away  a  bit  not  defeated  but  frustrated  by 
his  inability  to  complete  that  project.  He  had  thought  it  would 
be  built  during  his  time  there.  Then  Jerry  Gilbert  thought  it 
would  be  built  during  his  time  there,  and  that  didn't  work 


But  in  any  event,  the  district  was  starting  in,  in  Jerry 
Gilbert's  early  days  there,  on  a  much  more  comprehensive  approach 
to  its  future  water  supply  needs.   In  fact,  what  was  evolving  as 
1983  unfolded  was  the  early  stages  of  what  was  at  that  time,  I 
believe,  called  the  district's  Water  Action  Plan.   It  was  a 
comprehensive  look  at  where  the  district's  water  supply  and  water 
supply  system  was  headed,  and  implementation  of  the  American 
River  contract  would  be  a  part  of  that  planning  effort.   The 
planning  effort  was  being  scoped  out;  it  wasn't  being  carried 
out.   It  was  being  identified  and  articulated  as  an  effort  that 
needed  to  be  done.   It  hadn't  started  yet. 

Well,  the  litigation  was  still  out  there  and  was  now,  you 
know,  some  time  or  another,  somebody  was  going  to  have  to  worry 
about  how  to  resolve  that  litigation.   But  since  the  utility 
district  didn't  have  any  current  plans  for  project 
implementation,  I  think  the  plaintiffs  rested  easy,  but  the 
Action  Plan  was  coming. 

I  don't  remember  exactly  what  triggered  it,  but  discussions 
began  about  the  possibility  of  settling  the  case,  and  in  late 
1983,  after  it  was  known  that  I  was  going  to  replace  Jack  and 
prior  to  the  time  that  Jack  left,  there  were  discussions  between 
the  lawyers,  with  Jack  and  Bob  Helwick  carrying  them  out.   I  was 
aware  of  them,  but  these  were  continuations  of  the  litigation 

So  there  were  discussions  about  the  possibility  of  finding  a 
way  to  structure  a  settlement.   In  effect,  the  basic  concept  was 
to  recognize  the  coming  Water  Action  Plan  would  have 
environmental  documentation,  and  to  have  the  plaintiffs  dismiss 
their  case  without  prejudice  to  their  reopening  it  if  they  chose 
to  attack  the  decision  that  came  out  of  the  Water  Action  Plan  and 
the  environmental  documentation  for  the  Water  Action  Plan. 

My  recollection  is  that  in  return  for  their  agreement  to 
dismiss,  the  utility  district  was  going  to  agree  to  pay 
attorneys'  fees  to  the  environmental  organization,  and  I  have  a 
vague  recollection  that  that  was  a  number  that  was  just  $40,000 


or  $30,000,  after  all  those  years.  And  that  just  is  a  reflection 
on  different  economic  times.  But  it's  also  a  reflection  of  the 
fact  that  this  case  had  been  a  paper  case  up  until  then.  There 
had  never  been  a  single  deposition  taken.  There  had  never  been  a 
single  interrogatory.  Nobody  had  ever  thought  about  an  expert 
witness,  or  witnesses  at  all.   Because  there  were  demurrers  and 
motions  and  briefs  that  were  filed,  and  it  was  basically  the  kind 
of  lawsuit  that  one  or  two  lawyers  could  handle.  The  case 
basically  had  gone  to  the  state  supreme  court  for  two  written 
decisions,  and  to  the  U.S.  Supreme  Court,  on  a  general  demurrer. 

It  looked  like  the  settlement  was  in  order  and  in  good  shape 
at  the  end  of  1983.  As  a  matter  of  fact,  it's  my  recollection 
that  several  of  the  entities  had  already  signed  the  settlement 
agreement.   In  particular,  I  believe  Mr.  [Tom]  Graff  had  signed. 
He  was  representing  the  environmental  organizations .  But  on  the 
second  or  third  working  day,  the  third  working  day,  I  think,  of 
1984 — I  became  general  counsel  January  1,  1984,  right? 

Attempt  to  Settle  Fails.  1984 

Maddow:   It  seems  to  me  it  was  Wednesday  or  Thursday  of  that  week,  I  get 
this  call  from  Lee  Elam,  and  he  says,  "I'm  sorry,  but  the 
settlement  is  not  going  to  work.  The  board  of  supervisors  is  not 
going  to  authorize  me  to  execute  the  agreement."  What  had 
happened,  basically,  was  that  a  difference  of  opinion  of  some 
sort,  the  details  of  which  I  have  never  known,  arose  between  EDF 
and  the  Save  the  American  River  Association,  and  Save  the 
American  River  Association  was  apparently  able  to  contact  the 
Sacramento  area  political  people,  members  of  the  board  of 
supervisors,  and  the  settlement  fell  apart. 

Well,  the  first  thing  we  did  was  to  pull  out  the  timetable 
because,  you  see,  during  the  march  up  and  down  appellate  court 
calendars,  the  five-year  statute  of  limitations  for  bringing  the 

case  to  trial  had  been  tolled  by  action  of  law,  not  by  anything 


the  parties  had  done.  What  we  needed  to  do  was  to  go  in  and  say, 
okay,  when  was  the  case  at  issue  since  that  starts  the  five-year 
period?  And  after  we  deduct  all  the  time  on  the  appellate  court 
calendars,  when  does  the  case  have  to  go  to  trial?  And  we 
figured  out  it  had  to  go  to  trial  in  about  six  weeks. 

Preparing  for  a  Trial  on  the  Facts 

Maddow:   Not  a  single  bit  of  discovery  had  ever  been  done,  and  what  was 

clear  after  the  overruling  of  our  demurrer  was  that  this  case  was 
going  to  be  tried  on  the  facts.   It  was  going  to  be  a  question  of 
determining  reasonableness  of  our  point  of  diversion,  which  was 
going  to  lead  inevitably  to  our  having  to  put  on  a  case  based 
upon  drinking  water  quality  as  being  the  motivating  factor  for 
our  set  of  decisions,  and  balancing  that  set  of  factors  against 
the  potential  for  adverse  impact  to  stream  flows,  recreation, 
aesthetics,  fisheries,  et  cetera,  in  the  lower  American  River. 

That's  a  factual  case.   You  don't  put  something  like  that 
together  in  six  weeks  very  easily,  we  didn't  think- -especially 
when  Jack  Reilley  had  just  left;  Frank  Howard  wasn't  working  at 
full  strength  at  that  time;  Bob  Helwick  and  I  were  pretty  busy  as 
it  was  with  other  things;  Nancie  Ryan  was  in  the  office  but  was 
at  that  point  primarily  doing  work  for  the  district's  personnel 
department  and  some  of  its  administrative  functions  and  so  she 
was  very  busy  and  quite  new  to  the  district.   So  we  were  a  little 
bit  strapped! 

Hiring  Arthur  Littleworth's  Firm,  1984 

Maddow:   One  of  the  first  things  that  Bob  and  I  decided- -Bob  and  I  talked 
about,  and  I  talked  to  Jack,  and  I  decided,  frankly,  because  in 
hindsight,  if  we  had  to  do  it  all  over  again,  I  don't  know 


whether  Helwick  would  have  done  it  the  same  way.  But  what  we  did 
was  the  right  thing  to  do.  We  started  thinking  about  attorneys 
who  could  assist  us  in  this  case.  The  first  call  I  made  was  to  a 
man  named  Art  Littleworth  at  Best,  Best  &  Krieger  in  Riverside. 
Art  was  not  available,  and  so  I  got  his  partner,  Dallas  Holmes, 
who  is  an  old  friend.  Dallas  is  now  a  superior  court  judge  in 
Riverside  County. 

I  said,  "We've  got  this  case."  Of  course,  they  all  knew 
about  it  because  this  case  had  been  to  the  state  supreme  court 
twice  and  everybody  had  read  about  it.   I  said,  "We  have  a 
problem  here."  And  Dallas  said,  "Don't  do  anything  until  I  get 
back  to  you  or  Arthur  gets  back  to  you.  We'd  love  to  work  on 
this."  Well,  it  was  going  to  take  a  little  while,  and  Arthur  was 
a  very  busy  man  at  that  time. 

And  so,  to  hedge  my  bets,  I  made  a  second  call.   I  called  a 
man  named  Paul  Engstrand,  from  a  firm  called  Jennings  & 
Engstrand,  down  in  San  Diego.   They  represented  the  Imperial 
Irrigation  District.   The  reason  I  called  Paul  was  that  at  that 
time  Imperial  was  facing  a  series  of  allegations,  both  in 
litigation  and  before  the  state  board,  that  its  water  use 
practices  were  in  violation  of  the  same  provisions  of  the 
constitution  that  were  at  the  heart  of  our  case,  Article  X, 
Section  2,  and  the  reasonable  use  doctrine. 

And  so  I  knew  that  Paul  had  done  a  lot  of  legal  work  on 
these  issues,  and  I  thought  he  is  an  experienced  litigator  and 
water  law  professional  who  has  a  big  firm  behind  him  and  who  has 
been  working  in  this  area.   I  really  liked  and  respected  him.   So 

I  called  a  third  person.   I  called  a  woman  named  Anne 
Schneider.   I  had  first  met  her  when  I  think  she  was  still  Anne 
Jeffrey,  and  she  was  a  very  young  lawyer  I  think  out  of  the 
[U.C.]  Davis  Law  School,  who  had  really  impressed  me  in  some  work 
that  she  had  done  for  the  Governor's  Commission  to  Revise 
California  Water  Law,  which  had  been—let's  see,  who  appointed 
that  commission?   I  guess  it  was  Reagan  when  he  was  governor.   It 


was  chaired  by  Chief  Justice  [Donald]  Wright,  and  it  had  a  staff 
which  included  Anne  Jeffrey  and  Cliff  Lee,  who  is  now  in  the 
attorney  general's  office,  and  two  or  three  others.  And  it  had, 
as  members  of  the  commission — there  were  quite  a  number  of 
people,  but  the  person  who  really  stood  out  among  the  commission 
members  was  Arthur,  Art  Littleworth.  That's  where  I  had  really 
formed  an  opinion  that  at  that  time  he  was  the  very  best  of 
California's  water  lawyers.  He  and  Adolph  Moskovitz  just  were 
head  and  shoulders  above  everybody  else  at  that  point  in  my  mind. 

But  I  loved  the  way  Anne  wrote,  so  Anne  was  one  of  the 
people  I  called.   She  was  a  young  lawyer  with  a  Sacramento  law 
firm  at  that  time,  and  it  just  wasn't  going  to  work  out  for  her 
to  be  able  to  play  the  lead  role  I  would  have  wanted  her  to  play, 
had  we  been  able  to  use  her  firm. 

But  as  it  turned  out,  my  first  choice  was  Arthur,  and  Arthur 
was  available  and  just  jumped  at  the  chance  to  work  on  the  case. 
I  wanted  him  because  not  only  was  he  knowledgeable,  not  only  was 
he  just  a  terrifically  effective  writer,  but  he  has  a 
statesmanlike  quality  about  him  that  I  thought  was  going  to  be 
very  important.  At  this  time,  the  utility  district  had  a  board 
that  was  very  environmentally  conscious,  and  here  it  was  being 
sued  by  environmental  groups .   I  thought  it  was  very  important 
that  we  had  somebody  who  was  going  to  be  not  a  lightning  rod  type 
attorney  but  someone  who  would  have  statesmanship  and  diplomacy 
among  working  attributes,  and  Art  was  just  the  epitome  of  all 

So  in  early  1984,  in  January,  we  went  to  the  board  of 
directors  and  got  authority  in  closed  session  to  retain  Arthur's 
firm  to  assist  the  district  in  this  case. 

LaBerge : 


And  the  board  was  the  new  environmental  board? 

Or  only 

No.   This  was  1984.   The  real  strong  environmentalist  on  the 
board  at  that  time  was  still  Helen  Burke. 


LaBerge:   But  not  Nancy-- 

Maddow:   Nancy  Nadel  had  not  yet  come  on  the  board.   Helen  was  at  that 
time  a  very  effective  board  member,  but  she  didn't  have  other 
votes,  so  her  effectiveness  was  in  argument  and  helping  to 
position  the  board.  Probably,  if  I  can  use  sort  of  the  political 
spectrum  by  way  of  analogy,  Helen's  role  on  the  board  resulted  in 
the  board  as  a  whole  moving  further  to  sort  of  the  political 
left,  if  you  will,  than  would  have  been  the  case  otherwise.   She 
had  a  significant  impact  in  that  respect. 

There  was  also  a  man  on  the  board  named  Jack  Hill  at  that 
time,  who  was  Helen's  closest  ally  on  the  board.  Jack  was  not  as 
active  an  environmentalist  as  Helen,  but  he  certainly  was 
sympathetic  with  many  of  her  concerns.  We  had  a  good  board, 
sensitive  board,  hard-working  board.   It  was  still  very  much 
caught  up  in  trying  to  run  the  utility  district  in  the  most 
businesslike  and  cost-effective  manner  it  could,  but  it  also  knew 
about  the  significance  of  this  issue.  And  so  we  got  unanimous 
board  authorization  to  retain  Arthur  and  his  firm  to  represent 
the  district  in  this  case. 

Statute  of  Limitations  Issue:  Meeting  at  Norman's 

Maddow:   A  week  or  two  after  that,  we  had  one  of  our  first  big  strategy 
meetings  in  Oakland.  Arthur  couldn't  be  there  that  day  because 
he  had  to  make  a  court  appearance  in  another  matter.  The  two 
lawyers,  partners  from  his  firm  who  came  up  were  named  Ron  Kohut, 
and  Dick  Anderson.  We  had  a  morning  meeting  which  included 
myself  and  Bob  Helwick  and  the  district's  technical  team,  but  the 
general  manager  wasn't  there.   We  had  arranged  to  have  lunch  with 
him  at  a  restaurant  called  Norman's. 

LaBerge:   Ohl   I  remember  Norman's, 

Maddow:   Is  that  on  College? 


LaBerge:   College  and  Alcatraz? 

Maddow:   Was  it  Alcatraz?  I  can't  remember  that  part,  but  I  know  it's 
College.  Across  from  the  Buttercup  right  there  by  where  now 
Dreyer's  Ice  Cream  has  its  headquarters,  I  think.  Well,  anyway, 
we  went  into  one  of  those  tables  at  Norman's.  Remember,  it  was 
kind  of  dark  and  it  had  these  heavy  lights  hanging  right  over  the 
table.   Big,  fluted  glass  shades.   Very  heavy  [motioning).   And 
we  sit  down,  and  we  start  to  tell  Jerry  Gilbert  the  outcome  of 
that  morning's  efforts.  Key  to  our  strategy  was  we  don't  have 
time  to  put  this  case  together  from  the  standpoint  of  preparing 
our  factual  information,  so  our  collective  recommendation  of  the 
general  counsel  and  special  litigation  counsel  is  that  the 
,  utility  district  seek  to  enter  into  a  stipulation  with  the 

-plaintiffs  to  extend  the  five-year  statute  so  that  we  don't  go  to 
trial  in  six  weeks. 

Well,  the  general  manager  said,  "Absolutely  not."   In  much 
stronger  words.  And  I'll  never  forget  it  because  not  too  long 
after  that,  maybe  fifteen  minutes  later,  Dick  stood  up  to  go  to 
the  rest  room,  and  he  darn  near  knocked  himself  out  on  that  light 
fixture.   I'll  never  forget  it,  because  he  kind  of  stood  up  like 
that  [demonstrating] ,  and  literally  all  of  the  color  went  out  of 
his  face  at  that  point.   I  think  that  was  the  last  day  we  ever 
saw  Dick  Anderson  on  that  case  [laughing] . 

LaBerge :   [ laughing ] 

Maddow:   He  just  couldn't- -that  just--boy,  that  was  hard  for  him.   But  in 
any  event,  the  other  side  was  interested  in  stipulating,  and  at 
that  point  we  thought  that  it  would  be  prudent  to  stipulate,  to 
buy  ourselves  some  time  to  put  together  the  case.   Jerry  said, 
"No  dice.  We'll  go  ahead  on  the  basis  of  what  we  know.   We  know 
our  water  quality  case  and  our  water  supply  case  better  than  the 
plaintiffs  can  possibly  know  their  recreation  and  fisheries  case 
by  the  time  this  trial  is  supposed  to  open."  And  so  we  said, 

LaBerge:   In  the  district,  does  he  have  the  final  say? 


Maddow:   Well,  yes.  Yes,  in  the  sense  that  if  it  came  to  a  confrontation 
between  me  and  him  before  the  board  of  directors,  there  was  no 
way  I  would  have  prevailed.   I  was  the  brand-new  general  counsel, 
and  he  was  the  very  experienced  general  manager.  But  it's  much 
more  than  that.  The  general  manager,  under  the  municipal  utility 
district  act,  runs  the  district.  The  general  manager  of  a 
municipal  utility  district  has  authority  that  is  more  akin  to  a 
strong  city  manager  than  anybody  else  in  government  that  I'm 
aware  of.   It's  a  stronger  type,  a  more  thorough  and 
comprehensive  type  of  authority  than  the  general  managers  of  most 
water  districts  have. 

And  this  general  manager  clearly  had  the  support  of  the 
board,  and  when  he  said  we  were  not  going  to  stipulate,  that  was 
all  there  was  to  it.  We  certainly  discussed  it.  We  laid  it  all 
out,  we  told  him  what  all  the  options  were.   I  don't  mean  to 
sound  like  I'm  being  critical  of  him,  because  I'm  not.  He  was 
fully  advised,  both  before  and  after  he  told  us  what  he  wanted 
done,  and  he  made  the  conscious  choice,  and  we  said  okay,  and  we 
did  it. 

Trial  Before  Judge  Bancroft.  Alameda  County.  1984 

Maddow:   And  so  the  trial  actually  opened  I  think  it  was  April  9,  1984. 
By  this  time,  it  was  clear  to  the  county  and  the  environmental 
groups  that  they  were  not  ready  to  go  to  trial,  and  they  started 
looking  for  a  way  to  buy  time.   So  we  were  more  ready  than  they 
were.   Let's  put  it  that  way.   We  weren't  really  ready,  but  we 
could  have  done  it.   After  all,  we  were  defending.   They  had  to 
go  first,  and  they  had  the  burden  of  proof,  and  so  we  figured 
that  we  could  cross-examine  them  in  a  very  effective  way  and 
defeat  much  of  what  they  had  to  say,  and  by  the  time  they  were 
done,  we  would  have  a  case  in  chief  to  put  on  in  defense.   So  we 
were  ready. 


On  the  first  day  of  trial,  Sacramento  County  put  on  one 
witness.  He  was  a  county  parks  official  who  testified  about  the 
American  River  Parkway,  Sacramento  County's  American  River 
Parkway.  And  I've  forgotten  the  exact  sequence,  but  as  I  recall, 
Save  the  American  River  Association  was  no  longer  represented  by 
Tom  Graff.  They  had  split,  and  there  was  a  man  who  was  a  lawyer 
— I  can  remember  what  he  looked  like,  but  I  can't  remember  h±s 
name — who  was  a  member  of  SARA's  board,  who  appeared  and  my 
recollection  is  what  he  said  was  they  needed  more  time  to  get 
independent  counsel. 

Sacramento  County  appeared  through  an  attorney  named  Dennis 
DeCuir.   Dennis  was  a  litigator  with  a  Sacramento  law  firm  of 
McDonough  Holland  &  Allen.   That  was  Martin  McDonough,  who  was 
one  of  the  real  stalwarts  of  California  water  law  through  the 
fifties  and  sixties.   He  faded  a  bit  towards  the  end  of  the 
seventies.   I  think  he  passed  away  in  the  early  eighties.  But  in 
any  event,  they  were  a  very  well-respected  firm.   Still  are. 

Dennis  DeCuir  had  been  engaged  by  the  county  counsel's 
office  to  play  the  same  role  for  the  county  that  Art  Littleworth 
was  playing  for  the  utility  district.  And  they  made  a  motion  to 
send  the  case  to  the  State  Water  Resources  Control  Board  under 
Water  Code  Section  2000.   They  asked  the  court  to  request  the 
board  to  serve  as  referee,  in  effect,  on  issues  that  were  within 
the  board's  particular  area  of  expertise. 

That  was  kind  of  galling  to  us  because,  after  all,  we  had 
defeated  the  allegations  with  regard  to  wastewater  reclamation  on 
the  grounds  that  these  people  should  have  started  before  the 
state  board  over  there.  But  here  we  got  to  the  point  where  we 
were  ready  to  settle  the  case.   The  other  side  was  unable  to 
reach  full  agreement  on  that.   We  said,  "Okay.   We're  going  to  go 
to  trial.  We're  going  to  go  quickly.   We're  not  going  to  fool 
around."  And  lo  and  behold,  the  other  side  comes  back  and  says, 
"Oh,  let's  go  to  the  state  board." 

The  judge  at  that  time  was  Richard  Bancroft. 


LaBerge:   Where  are  we? 

Maddow:   We're  in  the  Alameda  County  Superior  Court,  and  the  judge  is 

Richard  Bancroft,  who  frankly  had  never  seen  anything  like  this 
case  and  was  beginning,  I  think,  to  feel  like  it  was  going  to  be 
a  bit  overwhelming.  Which  it  was.  And  I  think  he  welcomed  that 
motion.   In  essence,  between  April  the  ninth  and  sometime  in 
November,  it  was  very  clear  that  the  motion  was  being  granted. 

Referral  to  State  Water  Resources  Control  Board 

Maddow:   A  lot  of  effort  on  the  part  of  lawyers  ensued  between  April  and 
November  to  get  the  judge  to  the  point  where  he  was  willing  to 
sign  the  order,  actually  referring  the  case  to  the  state  board. 
He  made  it  clear  very  early  on  that  he  wanted  to  send  it  to  the 
state  board.  Frankly,  we  thought  going  to  the  state  board  was 
probably  not  the  worst  thing  in  the  world  because  we  felt  very 
confident  that  we  could  do  well  there,  because  we  thought  we  had 
a  strong  case,  not  because--! fm  not  saying  on  the  basis  of 
politics  or  any  of  those  things.  We  just  thought  that  we  had  a 
strong  case  from  both  a  legal  and  factual  standpoint. 

In  any  event,  we  resisted,  but  the  judge  ruled  that  the  case 
would  go  up  there.   It  took  until  November  for  him  to  sign  the 
order  containing  the  twenty-one  issues  of  law  and  fact  on  which 
he  wanted  the  assistance  of  the  state  board  with  its  particular 
expertise,  prior  to  the  time  that  he  ruled  on  the  case  that  was 
before  him.  What  was  before  him  was  a  case  seeking  injunctive 
relief,  declaratory  relief,  and  a  writ  of  mandate,  in  effect 
compelling  the  utility  district  to  do  something  other  than  take 
its  water  out  of  the  Folsom  South  Canal. 

For  example,  one  of  the  allegations  was  that  the  utility 
district  should  use  its  best  efforts  to  rescind  or  re-form  the 
contract,  and  the  judge  was  being  asked  to  do  that  on  the  basis 
of  an  argument  that  the  contract  provided  for  a  point  of 


diversion  which  was  unreasonable  as  a  matter  of  law.  He  said,  "I 
can't  rule  on  that  until  I  get  these  twenty-one  questions 
answered."  The  parties  got  a  chance  to  help  shape  those  twenty- 
one  questions.  We  won  some,  they  won  some,  the  judge  went  his 
own  way  on  some. 

And  so  in  November  we  headed  off  to  Sacramento. 
LaBerge:   Still  with  Art  Littleworth' s  firm? 

Maddow:   Yes.   And  it  was  primarily  Art.   Ron  Kohut,  who  was  a  litigator, 
was  part  of  the  team.   They  had  a  young  associate  named  Ariel 
Calonne,  who  is  now  the  city  attorney  of  Palo  Alto,  one  of  the 
brightest  and  most  hard-working  attorneys  I've  ever  known.   He 
had  the  capacity  to  grind  out  [snapping  his  fingers  once]  more 
paper  in  a  short  time  than  just  about  any  lawyer  I've  ever  known. 
Good  paper. 

By  this  time,  Mr.  DeCuir  had  been  replaced  by  Stuart  Somach. 
Stuart  had  been  in  the  office  of  the  solicitor  of  the  Department 
of  the  Interior.   He  had  been  the  Bureau  of  Reclamation's  lawyer, 
and  he  left  federal  service  and  went  to  McDonough  Holland  & 
Allen.   This  I  believe  was  the  first  case  he  handled  for  them,  or 
at  least  one  of  the  first  cases.   Stuart  is  a  very  fine  lawyer 
and  headed  up  the  team  for  the  county. 

At  this  point,  the  county  had  moved  to  center  stage. 
LaBerge:   Okay,  the  County  of  Sacramento. 

Maddow:   Up  till  this  time,  Tom  Graff  had  been  the  primary  lawyer  on  the 
other  side,  and  Lee  Elam  had  a  more  secondary  role.   But  by  this 
time,  when  the  case  had  evolved  into  something  where  there  was 
going  to  have  to  be  mastery  of  a  lot  of  facts,  Somach  took  center 
stage,  and  the  county  took  more  of  a  lead  role.   EOF  was 
represented  by  Tom,  still,  but  he  began  to  bring  in  John 
Krautkraemer.   John  is  dead  now.   He  was  killed  in  a  tragic 
skiing  accident  here  about  two  years  ago. 

LaBerge:  That  name  is  unusual.   I  think  I  remember  that. 

Maddow:   Outstanding  man.   Really  a  fine  person  and  very  good  lawyer.   It 
was  one  of  those  shocking,  tragic  deaths.  Just  a  very  young  man. 

But  in  any  event,  Tom  and  John  worked  on  the  case.  John  had 
more  of  the  laboring  oar  during  these  years.  Tom  certainly  was 
involved,  but  he  had  lots  of  other  things  he  was  doing  as  well, 
of  course. 


LaBerge:   Okay,  so  you  had  two  interventions, 

Hearings  Before  the  State  Board.  1984-1988 

Maddow:   Yes.   The  case  reached  the  state  board  in  November  or  December  of 
1984.   In  early  1985  the  state  board  staff  began  to  carry  out  a 
series  of  meetings.   It  was  almost  like  scoping  what  it  was  that 
they  were  going  to  have  to  do,  because  their  first  task  was  to 
prepare  a  work  plan  to  take  to  their  board  to  show  the  board  how 
they  were  going  to  go  about  accomplishing  the  court's  order. 

LaBerge:  Was  Ron  Robie  still- - 

Maddow:   Ron  Robie  was  no  longer  on  the  board.   At  this  time,  he  was  the 
director  of  the  Department  of  Water  Resources,  appointed  by 
Governor  [Edmund  G. ,  Jr.]  Jerry  Brown. 

Some  of  the  parties  with  whom  these  SWRCB  meetings  were  held 
included  state  and  federal  agencies.   The  Bureau  of  Reclamation, 
the  California  Department  of  Water  Resources,  the  California 
Department  of  Fish  and  Game,  for  example.   And  the  state  board 
began  a  process  of  developing  this  work  plan,  developing  a 
schedule  for  the  submission  of  evidence,  interviews  with  expert 
witnesses  were  to  be  conducted,  et  cetera. 


The  County  of  Sacramento  put  in  an  extensive  bunch  of 
material.  The  environmental  groups  just  kind  of  followed  them 
along,  didn't  add  anything  of  their  own.  But  it  wasn't  too  long 
after  that,  later  in  1985,  that  the  California  Department  of  Fish 
and  Game  decided  that  it  would  intervene  in  the  case,  or  seek  to 
intervene,  on  the  side  of  the  plaintiffs.  Their  intervention  was 
for  the  purpose  of  addressing  issues  related  to  fish  and  wildlife 
that  could  be  affected  by  the  district's  diversions  above  the 
lower  American  River.  The  significance  of  having  the  Department 
of  Fish  and  Game  come  in  is--the  principal  significance,  other 
than  the  obvious  symbolic  significance  of  having  a  state  agency 
file  against  you,  is  that  it  brought  in  the  attorney  general's 
office.   So  now  the  California  attorney  general  joined  the 
attorney  team  on  the  other  side. 

And  not  too  long  after  that,  a  second  state  agency,  the 
State  Lands  Commission,  did  the  same.   I  remember  Art  Littleworth 
telling  me  on  the  telephone  one  day  that  he  felt  like  he  was 
watching  a  football  game  in  which  the  official  ought  to  throw  a 
flag  and  say  that  there's  now  a  penalty  for  "piling  on." 

LaBerge :   [ laughing ] 

Maddow:   In  any  event,  the  Lands  Commission  intervened  because  under  state 
law  and  the  California  Constitution,  as  I  recall,  the  Lands 
Commission  has  jurisdiction  over  the  bed  and  banks  of  streams. 
And  so  their  intervention  was  for  a  limited  purpose,  and  that  is 
to  deal  with  riparian  issues.   I  don't  think  those  interventions 
were  inappropriate,  from  a  legal  perspective.   It  sure  didn't 
help  things  to  be  going  in  and  telling  our  board,  however,  that 
we  now  had  two  state  agencies  and  two  separate  deputy  attorney 
generals  in  the  court  room,  the  water  board  room,  et  cetera. 

In  any  event,  the  state  board  proceedings  began  to  unfold. 
The  board  originally  had  estimated  that  it  would  be  about  two 
years,  and  as  I  recall,  a  quarter  of  a  million  dollars  [$250,000] 
to  do  this  work. 

LaBerge:   Who  pays? 


Maddow:   We  had  to  pay  for  it- -that  is,  the  parties  did.   In  the  long  run, 
it  took  much  more  than  that.  Well,  the  state  board  got  the  order 
in  November  of  '84,  and  they  issued  their  final  report  in  June  of 
'88.  They  conducted  lots  and  lots  of  interviews.  The  staff  had 
a  process  that  they  used  where  it  wasn't  direct  and  cross- 
examination  or  anything  like  that,  but  the  parties  identified 
their  witnesses  and  prepared  reports  and  exhibits,  and  the  state 
board  staff  and  an  engineer  and  a  lawyer  and  an  environmental 
specialist,  three  or  four  people.  And  they  spent  a  lot  of  time 
working  with  the  legal  and  technical  teams  of  the  parties. 
Literally  weeks  of  meetings,  not  consecutive.   You  know,  there 
would  be  three  days  here  and  two  days  there.   But  lots  and  lots 
of  time  was  spent  in  exhibits — 

The  State  Board's  Team 

LaBerge:   Any  specific  persons  that  were — 

Maddow:   You  mean  from  the  state  board? 

LaBerge:   Yes. 

Maddow:   The  head  of  the  team  was  a  man  named  Ed  Dito.   Ed  was  an 

engineer.   The  lawyer  was—I'll  give  you  the  way  his  name  appears 
everyplace.   M  period,  G  period,  Buck  Taylor.   [M.  G.  Buck 
Taylor] .   Buck  is  a  guy  who  I  had  met  back  in  the  days  of  the 
drought  stuff,  and  also  Buck  and  I  had  worked  on  Perm  Mine  back 
in  1978.   He  was  the  lawyer  for  the  regional  board. 

But  in  any  event,  they  had  oh,  gosh — they  had  an 
environmental  specialist  named  Doug  Alb in.   They  were 
significant.   Ed  Dito  was  the  most  significant,  and  Buck.   Ed  was 
called  the  program  manager.   He  was  an  engineer  by  profession, 
but  they  called  him  the  program  manager.  The  engineer  was  a  man 
named  Mark  Stretars.   They  were  a  pretty  good  team. 


The  state  board  doesn't  have  all  the  resources  in  the  world 
and  can't  always  devote  as  much  attention  to  a  case  as  those  four 
men  devoted  to  this  case.  But  frankly  they  did  a  pretty  thorough 
job.  They  looked  at  all  of  the  evidence  produced  by  all  of  the 
parties,  including  interviews  with  expert  witnesses  and  lots  and 
lots  of  technical  reports.  And  did  so  as  staff  for  a  regulatory 
agency  should  do.  They  came  to  it  with  no  bias,  they  were 
objective,  they  were  as  tough  on  one  party  as  the  next.  Frankly 
none  of  these  things  are  ever  perfect,  but  I  thought  they  did  a 
pretty  darn  good  job. 

It's  easy  for  me  to  say  that  in  one  respect  because  I 
frankly  think  that  the  decision  that  they  rendered  was  more 
favorable  to  the  utility  district  than  it  was  to  the  plaintiffs. 
But  I'm  trying  to  separate  that  and  just  tell  you  that  the  way  in 
which  they  went  about  their  work  was  tedious  and  slow,  and  we  all 
griped  about  that,  but  I  frankly  think  they  did  a  pretty  good  job 
and  produced  a  pretty  good  report. 

They  initially  produced  a  draft  document  in  February  of 
1987.   It  was  in  five  or  six  volumes.   There  was  an  executive 
summary  and  then  a  legal  report  and  a  lot  of  technical  volumes. 
Altogether  it's  a  stack  of  paper  about  six  inches  high.  When 
they  initially  asked  the  parties  to  submit  evidence  and  reports 
and  materials,  one  of  the  things  they  asked  the  parties  to  do  was 
to  submit  proposed  physical  solutions.   Now,  a  physical  solution 
is  a  real  important  doctrine  in  California  water  law.   The  term 
really  goes  back  to  a  supreme  court  case  called  Lodi  v.  East  Bay 
MUD. 1  A  1936  supreme  court  decision  which  in  effect  says  that 
when  there  are  conflicting  and  competing  claims  to  a  limited 
supply  of  water,  that  one  of  the  things  that  the  court  can  do  is 
to  fashion  a  compromise  solution  that  allows  some  of  those 
competing  and  conflicting  claims  to  be  satisfied.   It's  a  sort  of 
formalized  way  of  reaching  a  compromise.   It's  an  encouragement 
to  the  court  to  look  to  these  kinds  of  things . 

'Lodi  v.  East  Bay  Municipal  Utility  District  (1936)  7  Cal.  2d  316. 


Proposed  Physical  Solutions 

Maddow:   To  its  credit,  the  state  board  recognized  early  on  that  a 

physical  solution  might  be  possible.  We  worked  really  hard  on  our 
physical  solution.  My  recollection  is  that  it  was  our  Exhibit 
33,  although  that  may  be  way  off.  I  have  a  copy  of  it,  and  I'd 
be  happy  to  let  you  borrow  it.  I  won't  let  you  keep  it,  because 
it's  the  only  one  I've  got.  The  district  may  have  others,  but-- 
it  has  an  exhibit  number  on  it. 

But  all  of  our  documents  were  in  these  sort  of  brick-red 
covers  like  this  [the  file  in  his  hand].   I  don't  know  if  I  have 
an  exhibit  number  on  this.  No,  I  don't.   I'm  pretty  sure  it  was 
our  Exhibit  33.  And  what  we  basically  did  was  to  make  an  offer 
to  subordinate  our  take  of  water  to  those  instream  flows  that 
were  a  part  of  Decision  1400.  Remember  I  said  that  Decision  1400 
was  in  the  Auburn  water  rights  decision.  By  1985  we  were  pretty 
sure  there  wasn't  going  to  be  an  Auburn  Dam  for  a  while. 

LaBerge:   Right. 

Maddow:   And  so  the  Auburn  flows  wouldn't  ever  really  kick  in,  although 
the  bureau  was  attempting  to  abide  by  them.   I  mean,  they  had 
plenty  of  water  with  which  to  do  it  without  Auburn.  They  had 
plenty  of  water  with  which  to  meet  those  flows.  And  we  said, 
under  virtually  all  circumstances,  we  would  not  take  water  if 
doing  so  would  cause  the  bureau  to  exceed  or  to  invade  the 
limits,  to  not  be  able  to  comply  with  the  recreation  and  instream 
flow  regime  of  D-1400. 

It  took  a  lot  of  doing  for  us  to  make  that  offer.   A  lot  of 
hydrologic  modeling  runs,  a  lot  of  thinking,  and  we  put  that  in 
our  case  early  on.   It  was  interesting  because  it  kind  of  forced 
Sacramento  County  into  some  interesting  thinking.   There  are  some 
enormous  ironies  in  this  whole  American  River  litigation.   I  told 
you  that  when  Folsom  South  Canal  was  built,  it  included  a  gate 
structure,  a  turnout  structure,  at  which  East  Bay  was  supposed  to 
collect  its  water.   There  are  five  gates  in  that  structure. 


About  a  hundred  yards  up  the  canal  from  there,  there  is  a 
seven-gate  structure.  And  that  structure  was  built  for 
Sacramento  County  to  take  its  water  out  of  the  Folsom  South 
Canal.  You  see,  the  utility  district  was  trying  to  contract  for 
150,000  acre-feet  out  of  the  Folsom  South  Canal.   Sacramento 
County  was  trying  to  contract  for  230,000  acre-feet  to  be  taken 
out  a  hundred  yards  upstream  from  East  Bay  MUD's  point  of 

Sacramento  County's  Issues 

Maddow:   How  ironic  for  Sacramento  County  now  to  be  leading  the  charge, 

arguing  East  Bay  shouldn't  be  allowed  to  take  the  water  out  in  a 
manner  and  at  a  place  which  would  prevent  it  from  going  down  the 
lower  river  when,  in  fact,  they  had  been  planning  for  many  years 
to  do  the  same  thing.   But  we  forced  the  issue  with  our  physical 
solution,  and  I  think  those  parts  of  the  county  that  knew  that 
there  was  still  this  water  supply  plan  began  to  feel  that  maybe 
they  needed  to  think  in  terms  of  something  that  would  allow  them 
to  still  continue  to  get  some  of  the  water  they  were  looking  for. 

Sacramento  County's  identified  needs  for  the  water  were  for 
some  agricultural  uses  in  the  southern  part  of  the  county,  but 
they  were  also  for  some  municipal  and  industrial  uses  in  the  very 
rapidly  growing  portions  of  the  county  to  the  south  of  the  city 
of  Sacramento.   Elk  Grove  and  Zone  40  and  those  areas.   So  the 
county  added  that  for  their  physical  solution,  as  well.   I  don't 
remember  the  details  of  it,  but  I  remember  that  they  put  in  a 
physical  solution  that  would  not  in  effect  force  East  Bay  totally 
off  the  river. 

Mr.  Somach  came  under  serious  fire,  politically  and  in  the 
press,  as  the  lead  lawyer  for  the  county,  for  having  countenanced 
the  thought  of  anyone  taking  any  water  out  of  the  river.   Of 
course,  he  was  countenancing  the  thought  because  that's  what  his 
client,  at  least  part  of  his  client,  wanted  to  do. 


Similarly,  the  city  of  Sacramento  had  designs  on  increasing 
its  take  of  water  from  the  American  River.  The  city  of 
Sacramento  has  two  water  treatment  plants.  One  is  on  the 
American  River,  at  H  Street,  about,  oh,  what  is  that?  A  mile  and 
a  half  or  two  miles  or  maybe  three  miles,  upstream  of  the 
confluence  of  the  American  and  the  Sacramento.   Just  upstream  of 
the  mouth  of  the  American,  really. 

They  have  a  second  plant  which  is  out  on  the  Sacramento 
River.   The  H  Street  plant  is  the  bigger  plant,  more  modern 
plant,  and  the  Sacramento  River  plant  was  the  one  that  was  more 
prone  to  problems  related  to  the  turbidity  or,  in  particular,  the 
pesticides  and  herbicides  that  come  off  the  rice  fields  north  of 
the  city  of  Sacramento  along  the  river.  And  that  plant  has  been 
a  troublesome  one. 

And  so  the  city  had  these  long-standing  plans  to  double  or 
even  quadruple  the  size  of  its  plant  down  along  the  reach  of  the 
American  River  from  which  people  aren't  supposed  to  be  taking 
water  under  the  political  equation,  mantra,  that  was  developing 
as  county  people  were  trying  to  fend  off  East  Bay. 

The  city  of  Sacramento  serves  water  not  only  within  the 
Sacramento  city  limits  but  it  serves  extensive  areas  outside  the 
city  limits,  and  its  need  to  expand  that  plant  was  largely  driven 
by  growth  outside  the  territorial  boundaries  of  the  city.   One  of 
the  offshoots  of  that  was  at  various  and  sundry  times 
consideration  of  other  forms  of  government  in  the  Sacramento 
area.   But  the  thought  of  extra-territorial  water  service  by  a 
government  entity  that  the  people  who  were  being  served  had  no 
voice  in,  was  a  concern  to  some  people. 

Well,  I'm  digressing  on  all  of  that.   But  the  whole  question 
of  whether  or  not  a  physical  solution  was  possible  was  aired 
quite  early.   It  was  quite  troublesome.   Because  of  that  early 
airing,  it  tended  to  force  the  county  to  a  position,  or 
politically  force  them  to  a  position  where,  more  and  more,  they 
were  finding  themselves  having  to  argue  East  Bay  should  be 
totally  off  the  river  and  there  shouldn't  be  any  diversions 


between  Nimbus  and  the  mouth  of  the  river.  That  was  troublesome 
to  the  Sacramento  city  water  people.   I  know  that  sort  of  off  the 
record  because  I  knew  a  man  who  was  one  of  the  managers  of  that 
water  utility,  a  very  fine  man  who  was  very  honest  about  his 
belief  that  higher  quality  water  was  available  if  he  could  take 
it  off  the  American  than  if  he  had  to  get  it  someplace  else. 

But  it  was  very  clear  that  the  lines  were  being  drawn  and 
East  Bay  was  to  be  fought  off,  and  if  fighting  them  off  meant 
nobody  could  take  water  out  of  the  American,  so  be  it. 

LaBerge:  Was  part  of  it  that  East  Bay  was  coming  from  down  here? 

Maddow:   Absolutely.  Absolutely.  We  were  coming  from  a  long  way  away, 
and  we  were  trying  to  buy  water  that  they  considered  to  be  part 
of  their  birthright.   It's  not  called  River  City  for  nothing. 

LaBerge:   Right,  sort  of  counties  of  origin  kind  of  thinking? 

Maddow:   Very  much  that  type  of  thinking.   Not  always  expressed  in  terms 
of  county  of  origin  or  area  of  origin  or  watershed  of  origin  and 
legal  protections,  but  the  philosophy  of  it  was  certainly  there. 
And  there  were  lots  of  other  elements  of  all  of  that.  We  were 
told  that  we  ought  to  be  taking  water  out  of  the  Delta  if  we 
needed  more  water,  and  why  do  we  need  more  water,  anyway?   I 
mean,  there  was  always  an  argument  about  whether  or  not  the 
utility  district  was  trying  to  get  more  water  in  order  to  fuel 

There  were  arguments  about  such  things  as  conservation  and 
reclamation.   Arguments  about  whether  the  Delta  in  particular  was 
an  alternative  source.   At  one  point  in  the  early  eighties,  a 
group  of  twenty  or  so  congressmen,  primarily  from  southern 
California,  signed  a  letter  that  was  in  effect  saying  that  East 
Bay  ought  to  come  out  of  the  Delta,  and  there  were  people  within 
the  political  circles  who  were  quite  sure  that  some  of  the  people 
from  the  Metropolitan  Water  District  or  other  entities  in 
southern  California  might  have  a  hand  in  that  happening. 
Remember,  this  was  shortly  after  the  defeat  of  the  Peripheral 


Canal.  And  remember  where  the  votes  lay  from  defeating  the 
Peripheral  Canal.1  I  mean,  94  percent  voting  against  it  in  the 
East  Bay  service  area.   So,  you  know,  there  were  lots  of  politics 
on  sort  of  the  broader  scale  that  were  afoot,  as  well. 

Senator  Greene's  Commitment  on  S.B.  2458.  1986 

Maddow:   At  one  point  in  all  of  that,  Assemblyman  [Phillip]  Isenberg  and 
State  Senator  [Leroy]  Greene  from  the  Sacramento  area  had  talked 
about  trying  to  get  the  legislature  to  adopt  new  law  that  would 
in  effect  prevent  East  Bay  from  being  able  to  take  water  off  the 
American  River.   Senator  Greene  had  a  bill  [looking  through 
papers]  that  was  introduced  in  1986.   It  was  Senate  Bill  2458. 
I'll  give  you  a  copy  of  this.2  Actually,  I'll  let  you  make 
copies  of  this  because  I'd  kind  of  like  to  hang  onto  these,  but 
it  was  in  April  of  1986.  In  effect,  it  was  going  to  prohibit  the 
construction  by  any  public  agency  of  facilities  within  or 
upstream  of  the  Delta  in  order  to  transport  high-quality  American 
River  water  through  or  around  the  Delta.   Instead,  it  should  be 
allowed  to  flow  downstream. 

We  got  into  some  conversations  with  Senator  Greene.   I  don't 
have  a  date  on  this  document.   I  have  always  regretted  that.   But 
I  know  it  was  in  early  1986  that  I  was  in  his  office,  along  with 
his  staff  people,  and  as  I  recall,  I  had  a  utility  district 
engineer  with  me.  We  struck  what  I  thought  was  an  appropriate 
compromise.   It  would  have  amended  his  legislation  to  say  that 
[reading],  "the  East  Bay  Municipal  Utility  District  may  exercise 
rights  under  its  contract  for  a  water  supply  from  the  CVP,  only 
to  the  extent  that  delivery  of  that  water  will  not  cause  flows  in 

'Proposition  9  (June  1982). 
2See  Appendix 


the  American  to  be  diminished  below  the  minimums  of  Decision 
1400. lfl 

I  suggested  that,  and  we  had  it  typed  up,  and  the  senator 
signed  it,  and  I  signed  it,  and  the  bill  was  set  to  be  heard  in 
the  senate.   I  guess  it  was  called  the  Water  Committee  in  those 
days.   It  was  chaired  by  Senator  [Ruben]  Ayala  of  southern 
California.  And  his  chief  staff  person  was  a  man  named  Steve 
Macola.  We  reached  this  understanding.   Senator  Ayala  had  never 
been  particularly  happy  with  East  Bay  because  he  had  been  an 
advocate  of  the  Peripheral  Canal,  and  he  thought  that  East  Bay 
had  not  helped  when  it  might  have.  And  so  he  was  prepared  to 
take  Senator  Greene's  bill  to  hearing. 

When  I  saw  Mr.  Macola  later  on  the  day  that  the  senator  and 
I  had  signed  this  piece  of  paper,  I  said,  "Steve,  we're  ready  to 
go  to  hearing."  He  thought  that  they  were  going  to  deliver  a 
blow  to  East  Bay,  I  remember.  I  said,  "Steve,  we're  ready  to  go 
to  hearing .   The  senator  and  I  have  been  talking  this  morning , 
and  we  reached  agreement."  And  he  said,  "On  what?"  I  showed  him 
the  piece  of  paper.   He  looked  at  it,  and  he  shook  his  head,  and 
he  looked  at  me,  and  he  said,  "Poor  Leroy.  He  won't  know  what's 
hit  him." 

And  sure  enough,  other  people,  a  staff person  from 
Assemblyman  Isenberg's  office  and  people  from  local  political 
groups,  et  cetera,  just  started  really  berating  Senator  Greene 
that  afternoon  for  having  caved  in  to  the  utility  district  or 
whatever  it  is  they  thought  he  had  done.   But  to  his  credit,  he 
said,  "I  agreed.   I  signed  off.   Here's  the  piece  of  paper  Maddow 
and  I  signed  off."  And  he  said,  "I'm  not  going  to  go  back  on  my 
word."   So  he  pulled  the  bill.   Rather  than  have  it  go  to  hearing 
and  become  some  kind  of  embarrassment  for  him  or  me  or  somebody. 
Rather  than  force  it  to  an  issue,  he  pulled  the  bill.   And  he  did 
so  because  he  had  given  me  his  word  on  something,  and  he  wouldn't 
go  back  on  his  word,  and  I  give  him  a  lot  of  credit.  Some  very 
nasty  things  were  said  to  him  by  other  people  at  about  that  time, 

:See  Appendix. 


and  he  endured  a  lot  of  criticism.  And  I  was  very  impressed  with 
the  fact  that  he  stuck  by  his  word. 

Senator  Greene  was  an  engineer  by  profession,  as  I  recall. 
He  had  the  ability  to  listen  to  what  we  were  saying  and  to 
evaluate  it  as  an  engineer,  and  I  think  he  thought  that  Decision 
1400  gave  the  Sacramento  area  an  enormous  layer  of  protection 
that  it  hadn't  previously  had.  And  I  know  that  he  knew  that 
Auburn  Dam  would  probably  never  be  built  and  therefore  the 
protections  of  Decision  1400  had  an  ephemeral  quality  to  them. 

And  as  a  result,  he  thought  that  by  having  East  Bay,  which 
did  have  the  wherewithal  to  build  something,  by  having  East  Bay 
commit  to  a  measure  that  was  intended  to  continue  those  D-1400 
protections ,  he  thought  he  was  doing  something  that  was  to  the 
distinct  advantage  of  his  constituency.  And  in  hindsight,  I 
believe  he  was  right,  and  I  think  he  made  his  decision  on  a  fair 
basis.   He  didn't  make  his  decision  on  a  political  basis.   And 
politics  were  ruling  the  day  in  that  era  on  these  issues,  so  he 
suffered  for  it.   He  was  not  a  pure  politician. 

Assemblyman  Isenberg  and  Water  Meters 

Maddow:   Assemblyman  Isenberg,  on  the  other  hand,  was  unwilling  to  listen 
to  some  of  the  technical  arguments.  He  knew  that  if  he  listened 
to  them  that  we  did  a  pretty  good  job.   You  see,  Assemblyman 
Isenberg  had  been  the  mayor  of  Sacramento  at  the  time  that 
Sacramento  was  dealing  with  its  needs  to  have  a  regional 
wastewater  facility  built.   And  the  person  who  was  probably  more 
instrumental  than  just  about  anybody  else  in  the  way  that  plant 
ultimately  got  built  was  Jerry  Gilbert,  who  was  our  general 
manager . 

Jerry  Gilbert  and  Phil  Isenberg  knew  each  other  well  and  had 
a  healthy,  mutual  respect,  and  I  believe  Isenberg  knew  that  if  it 
came  down  to  an  argument  about  the  facts,  Gilbert  would  probably 


be  able  to  win  out.  And  so  he  never  wanted  to  talk  about  the 
facts.   He  would  just  argue  on  the  basis  of  politics. 

One  day  he  appeared  at  the  Water  Committee  of  the 
Commonwealth  Club  in  San  Francisco,  and  he  talked  that  day  about 
all  the  things  that  were  wrong  with  East  Bay's  plans  for  water 
supply,  for  taking  its  water  supply  out  of  the  American.  And  he 
talked  purely  on  political  and  emotional  grounds.   I  was  there, 
and  I  asked  him  a  question  about  something  that  the  Sacramento 
board  of  supervisors  had  just  done.  They  had  approved  a  series 
of  developments  in  the  southern  part  of  the  county,  developments 
for  which  Sacramento  County  was  supposed  to  obtain  water  from 
Folsom  South  Canal  and  now  had  been  unable  to,  and  so  what  they 
were  doing  was  approving  these  developments  based  upon  mining 
groundwater  from  already  seriously  depleted  aquifers ,  overdraf ted 
aquifers . 

And  so  I  raised  some  questions  of  Assemblyman  Isenberg  about 
what  was  going  on  with  regard  to  his  own  area's  water  supply 
planning,  in  contrast  to  what  the  utility  district  was  trying  to 
do.   And  of  course  I  was  able  to  bring  in  the  fact  that  the  city 
of  Sacramento  does  not  meter  its  water.   I  said,  "How  can  you  on 
the  one  hand  say  what  you're  saying  with  regard  to  East  Bay  and 
the  reasonableness  of  its  water  supply  program,  when  in  fact  the 
city  and  the  county  of  Sacramento  have  these  elements  of  their 
water  supply  programs  which  appear  to  raise  the  same  kinds  of 

And  in  front  of  the  whole  Water  Committee--there  were  maybe 
a  hundred  people  there,  maybe  fifty  people  there—he  said 
[speaking  brusquely  and  quickly],  "What  do  you  expect  from  us, 

LaBerge:   [chuckling] 

Maddow:   I've  never  forgotten  that.   I  thought  that  was  just  great. 

During  that  same  period  of  time,  the  utility  district  was 
not  just  defending  itself.   We  were  trying  to  point  out  that 


Sacramento  County  was  doing  some  things  that  were  questionable. 
In  fact,  in  regard  to  a  couple  of  the  land-use  planning  decisions 
that  were  made,  the  utility  district  filed  suit  against  the 
county,  in  particular  with  regard  to  an  area  called  Zone  40, 
which  was  south  of  the  city  of  Sacramento. 

We  attacked  the  adequacy  of  the  environmental  documentation 
that  was  done  for  some  very  large  subdivisions,  on  the  basis  of 
inadequate  attention  to  the  water  supply  issues.   And,  in  fact, 
those  county  decisions  were  in  effect  held  up.  We  were 
successful  in  that  litigation  in  at  least  causing  them  to  go  back 
and  redo  all  the  analysis  of  water  supply  issues  and  to  come  up 
with  a  whole  new  water  supply  planning  approach  that  was  more  in 
keeping  with  what  we  believed  to  be  the  reasonable  way  of 
approaching  water  supply  planning. 

The  tip  of  the  iceberg  of  those  arguments  always  had  to  do 
with  the  unmetered  supply  of  the  city  of  Sacramento.   One  day, 
one  of  those  arguments  had  to  be  made  in  front  of  the  Sacramento 
City  Council,  and  I  was  the  person  who  had  the  opportunity  to 
make  it.   I  mentioned  Mr.  Robie  before.   His  wife,  Lynn  Robie, 
was  at  that  time  on  the  city  council.  And  when  I  got  up  that  day 
to  talk  about  these  issues,  I,  of  course,  used  the  absence  of 
meters  as  the  punchline  of  my  presentation. 

And  there  was  quite  a  little  discussion  that  followed  after 
that,  mainly  berating  me,  of  course.  But  it  was  interesting 
because  Mrs.  Robie  would  not  mention  the  word  "water  meter."   She 
talked  about  the  "M"  word. 

LaBerge:   [chuckling] 

Maddow:   The  Robies  know  that  it's  a  terrible  mistake  to  not  have  meters 
in  an  urban  setting.   In  fact,  someone  told  me  they  have  one  on 
their  house.  When  Ron  Robie  was  director  of  the  Department  of 
Water  Resources,  he  had  one  installed.   I  imagine,  nobody  reads 
it  except  maybe  him  [chuckling],  but  they  understood  what  we  were 
talking  about.   It  is  just  politics. 


But  it  is  interesting  to  note  that  the  city  of  Sacramento  is 
a  charter  city.   In  most  charter  cities,  Section  I  of  the  charter 
says  something  like  "the  name  of  this  city  shall  be  the  city  of 
Sacramento."  My  recollection  is  that  Section  I  of  the  charter  of 
the  city  of  Sacramento  says,  "There  will  never  be  meters  on 
residential  hook-ups  in  the  city  of  Sacramento." 

LaBerge:  You're  kidding  1 

Maddow:   It's  in  the  city  charter.   I  think  it's  in  Section  I.   I  knew  all 
that  once.   But  it's  a  long-standing  issue. 

LaBerge:  Why  would  that  be  such  a  big  deal? 

Maddow:   Well,  you  have  to  think  about  where  the  city  is  located  and  when 
charters  were  written  and  all  of  that.  They're  located  at  the 
intersection  of  two  of  the  state's  major  rivers  and  pride 
themselves  on  being  the  River  City  and  an  abundant  supply  of 
water  and  all  of  that,  and  it  harkens  back  to  early  times. 

They  are  not  alone  in  that.   I  believe  there  is  a  similar 
charter  provision,  or  at  least  was  at  one  time,  at  the  city  of 
Fresno.   In  Fresno,  I  believe  meters  are  being  installed  in 
subdivisions,  in  new  development,  at  this  time.   I  don't  know 
those  details .   And  in  areas  served  by  the  city  of  Sacramento  but 
which  are  outside  the  city  limits,  I  believe  they're  now 
installing  meters.   Clearly,  meters  are  the  way  to  go  from  the 
standpoint  of  efficient  use  of  water  and  conservation  and  all 
that.   I'm  sure  that  the  politicians  and  others  in  the  city  of 
Sacramento  know  that.   It's  just  that  it's  kind  of  like  [part  of 
the  arguments  between]-- 

Maddow:    --the  city  and  the  utility  district,  because  there  was  a  fair 

amount  of  enmity  and  emotion  at  stake.  The  politicians  up  there 
were  attacking  the  utility  district  for  what  it  was  doing,  and 
the  utility  district  felt  that  it  was  doing  a  careful  job  of 
being  attentive  to  reasonableness  and  efficiency  and  conservation 


and  all  those  things,  and  didn't  want  to  take  these  things  lying 
down.  And  so  when  there  were  issues  that  arose  with  regard  to 
land-use  planning  or  resources  planning  from  areas  that  were 
attacking  the  utility  district,  we  occasionally  pointed  those 
things  out.   In  some  respects,  you  get  some  sort  of  short-term 
satisfaction  out  of  all  that.   In  some  respects,  we  did  help  to 
move  their  planning  in  what  I  consider  to  be  a  more  progressive 

In  some  respects,  we  just  continued  the  polarization,  and  so 
I  have  mixed  emotions  about  whether  or  not  some  of  the  things 
that  we  did  were  necessarily  going  to  be  in  everybody's  best 
interest  in  the  long  run.   I  don't  think  they  really  hurt.   I 
think  they  did  a  good  job  of  awakening  people.  But  there  was 
some  additional  polarization  as  a  result  of  this.   Not  always  the 
best  way  to  resolve  these  kinds  of  things . 

Art  Littleworth  and  the  Defense  Team 

LaBerge:   Well,  though,  it  sounds  like  you  have  a  good  relationship  and 
admiration  for  some  of  your  other  opponents.   I  mean,  when  all 
these  needs  come  up  you  say,  "And  he's  a  great  guy,  and  he's  a 
wonderful  lawyer . " 

Maddow:   Well,  I  truly  believe  that.   The  people  who  we  faced  in  these 

cases  were  good  people.   I  mean,  they  were  attorneys  representing 
clients.  And  just  because  you  have  to  do  battle  with  them 
doesn't  mean  you  can't  respect  them.  You're  much  better  off  if 
you  do  respect  them.   If  you  don't  respect  them,  you're  much  more 
likely  to  make  mistakes. 

We  tried  throughout  this  whole  thing  to  maintain  a  very  high 
professional  plane.   Hiring  Art  Littleworth  was  key  to  that. 
There  is  no  more  professional  lawyer  I've  ever  known.   There  is 
no  more  of  a  gentleman  in  everything  that  he  does.   It  pervaded 
our  whole  case.   The  case  was  huge.   We  had  water  quality  issues, 


fisheries  issues,  recreation  issues.  All  of  them  enormously 
complicated,  with  a  wide  variety  of  expert  testimony  and  reports 
and  gosh  only  knows  what  else. 

We  actually  used  a  six-attorney  team  from  Art's  firm.   Each 
of  the  attorneys  was  backed  by  an  associate.  Art  was  backed  by  a 
young  man  named  Eric  Garner.  We  had  a  partner  named  Greg 
Wilkinson,  who  was  just  named  one  of  California's  outstanding 
lawyers  last  year,  who  recently  got  a  unanimous  supreme  court 
decision  on  an  Endangered  Species  Act  case  that  made  front  page 
of  the  popular  press.  It  was  the  main  headline  in  the  San 
Francisco  Chronicle  one  day  last  week.  And  Ron  Kohut  was  the 
third  partner.   Each  of  them  was  backed  by  an  associate—Greg  by 
Janice  Weiss,  and  Ron  by  Laura  (whose  last  name  I  have 
unfortunately  forgotten  at  the  moment) .  They  were  a  wonderful 
team  of  people.   We  kind  of  split  the  case  up  into  thirds,  you 
know,  so  that  nobody  had  an  unmanageable  portion. 

We  had  a  big  team  of  people  from  the  utility  district:  Bob 
Helwick  essentially  full-time,  myself  probably  one-third  time, 
and  a  flock  of  engineers  and  others .  And  the  whole  approach  of 
that  team  was  on  a  very  high  professional  plane,  by  design,  and 
it  was  all  kind  of  just  people  trying  to  emulate  Art  Littleworth. 
Art's  participation  in  the  case  raised  the  level  of  the  debate  to 
one  that  was  a  purer  level  of  intellectual  and  scientific  debate 
than  it  would  have  been  had  we  had  somebody  in  there  who  was  more 
prone  to  get  in  there  and  just  mix  it  up  in  a  more  typical  case. 

That's  not  to  say  we  didn't  fight  hard  and  well.   But  the 
approach  was  a  very  professional  approach.   That's  the  way  the 
utility  district  did  things  under  Hal  Raines  and  Jack  Reilley, 
and  it  wasn't  going  to  change  under  my  watch.   By  hiring  Art 
Littleworth  I  guaranteed  that  it  wouldn't  change.   I  think  it 
raised  the  whole  tone  of  the  exercise. 


Report  of  State  Water  Resources  Control  Board.  1987 

Maddow:   The  state  board  staff  produced  this  massive  report  in  February  of 
1987.  They  took  objections  from  the  parties  to  the  staff  report. 
The  board  then  conducted  a  hearing  in  the  spring  of  1987.   It  was 
about  a  ten-day  hearing,  at  which  the  parties  put  out  sort  of 
summaries  of  the  case  that  they  had  presented  to  the  staff.  We 
did  it  by  panels.   There  was  a  limited  direct  and  cross- 
examination.  The  board  listened  patiently  and  heard  all  these 
eminent  witnesses. 

And  then  the  last  day  or  two- -I  think  it  was  maybe  in 
addition  to  the  ten  days  of  hearings.  I've  forgotten  now.  But 
then  the  board  said  that  it  was  going  to  take  unsworn  policy 
statements  from  anybody  who  wanted  to  come  up  and  speak.   There 
were  quite  a  number  of  people  who  got  up  and  spoke.   Elected 
officials  from  down  here  and  up  there,  a  variety  of  people,  and 
individuals,  environmental  organizations,  et  cetera.   I  think  the 
very  last  person  to  speak  was  Andy  Cohen. 

LaBerge:   Of  your  board. 

Maddow:   Who  was  later  elected  to  the  East  Bay  board.   This  was  1987,  and 
Andy  ran  for  the  board  and  was  elected  in  1990.  Andy  was  opposed 
to  the  American  River  project  that  the  utility  district  was 
pursuing.   He  was  very  articulate,  very  forceful.   He  really 
caught  the  state  board's  attention,  and  the  reason  for  it  is  not 
just  the  forcefulness  and  the  articulateness  of  his  statement. 
He  was  both  forceful  and  articulate. 

But  when  he  came  up  to  the  rostrum,  he  was  wearing  an 
industrial  strength  knee  brace.   I  don't  know.   I  think  he  had 
had  knee  surgery  or  needed  it  or  something.   I  don't  remember  the 
details.   He  was  wearing  shorts  at  the  time,  I  remember.   And  it 
was  a  terrible  effort  for  him  to  do  this  because  this  brace  was 
just  this  massive  appliance,  and  as  he  was  approaching  the 
rostrum,  it  was  kind  of  like  everything  just  stopped  for  a  second 
because  everybody  was  looking  at  this  man.  And  then  he  certainly 


had  everybody's  attention,  and  he  gave  probably  the  strongest 
statement  that  was  ever  made  in  the  entire  case  before  the  state 
board  of  sort  of  the  pure  environmental  position  about  the  things 
that  he  saw  wrong  with  East  Bay's  case.   I  always  thought  that 
was  a  remarkable  incident  in  the  whole  process. 

The  board,  however,  had  pretty  much  decided  that  it  was 
going  to  stick  with  the  referee's  report  that  the  staff  had 
developed  as  a  result  of  this  long  exercise.   And  in  June  they  in 
fact  completed  the  report  and  issued  it.   It  in  effect  said  East 
Bay's  contract  was  not  unreasonable.   East  Bay  can  use  the  water. 
They  came  up  with  an  alternative  to  the  physical  solution  that  we 
had  proposed  that  actually  was  a  little  more  favorable  to  the 
utility  district  than  what  we  had  proposed,  but  it  was  based  upon 
all  this  evidence  that  had  come  in  subsequent  to  our  preparation 
of  our  Exhibit  33. 

The  newspaper  articles  which  I  gave  you  earlier  resulted 
from  the  issuance  of  the  report  back  then.   But,  of  course,  that 
wasn't  the  end  of  anything  because  under  Water  Code  Section  2000 
what  the  board  did  was  to  adopt  the  report  of  referee,  and  send 
it  back  to  the  court  1 

Another  Trial  in  Alameda  County  Superior  Court 

Maddow:   A  few  months  ensued.   The  board  had  to  assemble  the  record 

because  it  had  to  send  back  the  whole  record  to  the  court.   But 
when  everything  got  back  down  there  to  the  court,  it  went  back  to 
Judge  Bancroft.   And  on  the  first  day  we  went  in  to  see  Judge 
Bancroft  for  a  conference  with  him  after  his  receiving  the 
report,  he  announced  that  he  was  retiring.   And,  interestingly, 
someone  asked  him,  "What  are  you  going  to  do?"  And  he  said  that 
he  was  going  to  go  to  work  for  one  of  the  firms  that  hires 
retired  judges  to  be  dispute  resolvers,  and  he  jokingly,  I  think, 
said,  "I  guess  you  can  hire  me"  or  something  like  that.  Well, 
the  state  can't  hire  private  judges.  Can't  do  that.  The  state 


is  not  allowed  to  do  that.  And  so  the  two  deputy  attorneys 
general  who  were  there  had  to  say  we  simply  couldn't  do  that,  so 
it  allowed  us  to  gracefully  move  away  from  that  moment  that  none 
of  us  were  quite  sure  about. 

But  in  any  event,  we  then  knew  that  we  were  going  to  have  to 
go  back  and  get  a  new  judge.  There  was  quite  a  swirl  of  activity 
about  that  point,  trying  to  figure  out  where  we  were  going  to  end 
up.  Essentially,  we  went  to  see  Judge  Michael  Ballachey.  He  was 
the  presiding  judge.  And  he  thought  about  how  he  was  going  to  go 
about  assigning  us  to  a  new  judge.   I've  forgotten  all  the 
details  of  the  process,  but  to  make  a  long  story  short,  after  a 
list  of  six  judges  was  identified  by  Ballachey,  we  were  soon 
assigned  to  Judge  [Richard]  Hodge,  who  at  that  time  was  out  in 
the  Hayward  court. 

We  all  trooped  on  out  there  one  day,  and  he  said,  "Oh,  so 
this  is  a  water  case."  He  said,  "Well,  I  had  a  water  case  once. 
I  learned  a  lot  about  hydrology."  And  we  all  kind  of  perked  up. 
What  he  was  talking  about  was  a  dispute  between  an  uphill  and 
downhill  landowner  about  drainage.  Two  backyards,  you  know,  kind 
of  a  thing?  We  all  said,  "Judge,  this  is  a  little  bigger." 

LaBerge :   [ chuckling ] 

Maddow:   But  he  had  a  great  spirit  and  good  humor  and  was  real  anxious  in 
getting  into  this .   Frankly  he  started  off  by  reading  this  report 
of  referee  and  engaging  in  dialogue  with  the  parties  and  all  of 
that.   I  think  from  early  on  he  decided  that  since  the  courts  had 
held,  both  in  EDF  /--actually  EOF  II,  I  guess,  and  then 
subsequently  we  of  course  had  the  Audubon  decision1  come  down, 
which  was  the  first  public  trust  decision.   Since  the  courts  had 
been  saying  that  the  state  board  and  judges  have  concurrent 
jurisdiction,  he  said,  "I  can  handle  this  case.   Let's  try  it 
over  again." 

'Audobon  v.  Superior  Court  (1983)  33  Cal.  3d  419. 


So  we  had  to  get  ready  to  try  the  case  for  the  third  time. 
The  first  time  we  tried  it  to  the  state  board  staff,  the  second 
time  we  tried  it  for  the  state  board  in  the  ten  days  of  hearings, 
now  we  had  to  go  try  it  for  the  judge.  That  was  painful. 
Because  we  had  been  there,  we  had  done  that,  and  everybody  kind 
.of  had  to  suck  it  up  all  over  again. 

LaBerge:  And  did  the  other  side  feel  the  same  way? 
Maddow:   Oh,  they  hated  the  decision  of  the  state  board. 
LaBerge:   So  they  were  happy. 

Maddow:   They  filed  reams  of  objections  and  exceptions  to  the  state 

board's  report,  and  they  were  anxious  to  get  another  shot.  We 
tried  to  point  out  that  it  was  unnecessary,  and  the  judge  said, 
"Ehgh!"  He  was  ready  to  do  it  again.   I  shouldn't  say  it  quite 
that  way.   He  made  a  very  thorough  study,  and  he  concluded  that 
there  were  issues  that  he  wanted  to  look  at  again.   He  wasn't 
satisfied  with  all  the  state  board  staff  had  done. 

And  so  we  started  all  over  again,  and  we  ended  up  with  a 
lengthy  trial  and  trooped  in  legions  of  experts  for  the  much  more 
formal  type  of  proceeding  than  we  had  had  at  the  state  board.   It 
all  took  place  in  the  courthouse  out  at  Hayward.   We  rented  an 
apartment  in  a  building  down  on  A  Street  in  Hayward  and  lodged 
five  of  the  attorneys  from  the  Littleworth  firm  there,  and 
brought  in  a  computer  and  had  this  huge  table,  like  half  the  size 
of  this,  which  was  our  work  space.   It  was  kind  of  an  ideal 
location,  but  it  was  kind  of  like  roughing  it  for  those  five 
attorneys.   I  really  admired  their  courage  in  sticking  it  out. 
There  wasn't  room  for  all  six  of  them,  and  fortunately  Janice 
Weiss 's  grandmother  lived  in  Hayward,  so  she  stayed  with  her 
grandmother,  and  the  other  five  stayed  in  the  apartment. 

A  marriage  resulted  from  this.   I  mean,  Ron  Kohut  and  Laura 
--I  can't  remember  Laura's  last  name.   But  Ron  Kohut  and  Laura 
were  married  some  time  after  all  of  that.  Actually,  I  guess  it 
was  maybe  during  that.   So  maybe  that  was  a  fortunate  thing. 

Daily  Summaries  and  Expert  Witnesses 

Maddow:   Judge  Hodge  had  an  interesting  way  of  trying  this  case.  Of 

course,  there  was  a  court  reporter,  but  every  day  he  asked  each 
of  the  parties  to  provide  him  with  a  summary  of  what  had  happened 
the  previous  day.   I  can't  remember  if  we  actually  provided  them 
on  a  daily  basis  or  a  weekly  basis,  but  we  set  up  this  computer 
system,  for  those  days  a  very  advanced  computer  system,  in  the 
apartment,  and  the  role  of  the  associates,  one  of  their  roles, 
was  to  produce  these  summaries.   If  the  case  was  dealing  with 
fisheries  issues,  there  was  one  of  the  associates  who  was 
focusing  on  fisheries  issues  and  that  associate  would  produce 
that  day's  daily  summary.   We  had  these  sort  of  daily  rushes,  you 
know,  that  we  would  have  to  produce. 

We  had  expert  witnesses  from  the  East  Coast  on  water 
quality.   Dan  Okun,  one  of  the--I  guess  in  French  it  would  be 
eminence  grls--one  of  the  grey  eminences,  one  of  the  real  gurus 
of  the  subject,  from  the  University  of  North  Carolina.   We  always 
had  to  worry  about  that  because  if  we  were  doing  anything  with 
Dan  during  basketball  season,  we'd  always  have  to  schedule  him 
around  [that] .   He  never  wanted  to  miss  a  home  North  Carolina 
basketball  game,  and  he  didn't  on  our  watch,  anyway. 

And  we  had  a  guy  named  Bob  Harris,  who  was  the  man  who  did 
the  work  for  EDF  that  resulted  in  all  the  publicity  that 
accompanied  the  original  enactment  of  the  Safe  Drinking  Water 
Act.   It  was  the  analysis  that  resulted  in  somebody  saying  that 
by  the  time  the  water  that  becomes  the  water  supply  for  the  city 
of  New  Orleans  reaches  the  city's  water  supply  intakes,  it  has 
already  been  through  the  human  kidney  forty-eight  times.   That's 
not  exactly  what  Harris's  research  showed,  but  they  used  Harris's 
research  for  those  kinds  of  outrageous  statements.   Harris  was  a 
real  leading  exponent  of  drinking  water  quality. 

We  had  really  good  people,  including  Don  Kelley  on  fish.  He 
was  Mr.  Salmon.  He  was  the  best  salmon  expert  that  anybody  knew 
of,  ably  supported  by  a  guy  named  Dave  Dettman.   We  had  a  lot  of 


expert  witnesses  who  were  really  good.  The  other  side  had  good 
people,  too.  We  think  we  pretty  well  outflanked  them  and  beat 
them  on  the  technical  grounds.  But  Judge  Hodge  did  give  them  a 
considerable  amount  of  attention  and  sway  when  he  reached  his 
final  decision,  particularly  with  regard  to  recreational  values 
in  the  river. 

Lengthy  trial.  Weeks  and  weeks  and  weeks.   Six  weeks 
altogether  of  constant  trial,  as  I  recall,  four  days  a  week. 

LaBerge:  Did  you  go  every  day? 

Maddow:   I  didn't  go  every  day.   I  couldn't.  Bob  Helwick  did.   I  could 

not.   And  that  was  largely  because,  you  know,  this  was  happening 
at  a  time  when  the  utility  district  had  a  lot  of  stuff  going  on. 
And  so  I  had  to  make  the  hard  choices .   I  was  actually  more 
involved  in  some  of  the  preparation  stuff  than  I  was  in  the 
presentation  of  the  trial.   I  attended  when  I  could. 

Sacramento  County,  of  course,  and  the  environmental  groups 
and  the  Department  of  Fish  and  Game  were  advocating  for  the  fish, 
so  they  brought  in  a  stuffed  salmon,  which  the  judge  hung  on  the 
wall.   Gorgeous  fish.  And  we  were  advocating  for  water  quality, 
and  so  we  needed  something  like  that,  so  one  of  our  guys  brought 
in  a  model  of  a  molecule  of  something  called  a  trihalomethane 
precursor.  Trihalomethanes  are  produced  through  the  combination 
of  a  water  supply  that  has  certain  contaminants  in  it, 
particularly  various  organics ,  and  chlorination  to  disinfect  the 
water.   One  of  these  byproducts  is  something  called  a 
trihalomethane,  which  is  carcinogenic. 

And  so  we  kind  of  focused  on  carcinogens  in  the  water  or  at 
least  the  precursors  to  the  formation  of  carcinogens  in  the  water 
that  we  were  being  told  that  we  should  take  in  lieu  of  getting 
American  River  water,  and  we  said,  "We  don't  want  any  of  that! 
And  here's  why!"  And  so  somebody  got  up,  and  it  was  great,  with 
this  little  sort  of  tinker  toy  model  of  a  THM  molecule.  Well, 
Judge  Hodge  had  that  sitting  right  on  his  desk!   And  he  used  to 
play  with  it!   So  through  the  whole  trial  we  had  this  sort  of 


irony  of  the  fish  looking  over  the  whole  proceeding,  and  the 
judge  playing  with  the  tinker  toy  THM. 

And  that's  what  the  case  came  down  to.   Because  the  judge 
said  those  fishery  issues  have  to  be  protected,  and  there's  a  lot 
more  that  we  have  to  learn  about  this.  Those  recreation  issues 
have  to  be  protected,  and  there  are  probably  more  things  we  need 
to  know  about  that,  but  by  golly,  drinking  water  counts,  too,  and 
so  East  Bay  gets  to  take  water.   It's  going  to  have  some  limits 
on  its  ability  to  take  water.  It  can  only  take  water  when  it's 
going  to  do  so  without  any  harm  to  the  fish  and  without  any  harm 
to  these  recreation  values. 

Judge  Hodge's  Decision  and  Continuing  Jurisdiction 

Maddow:   And  he  came  up  with  a  decision  that  was  well  over  a  hundred  pages 
long.   It  included  his  version  of  a  physical  solution  as  well, 
with  numbers  that  were  higher  than  what  the  state  board's 
physical  solution  had  said,  and  that  were  higher  than  what  we  had 
proposed  way  back  in  our  Exhibit  33.  And,  in  fact,  we  thought 
they  were  much  higher  than  was  warranted  by  the  evidence.   But  he 
kept  continuing  jurisdiction  over  the  case,  and  he  appointed  a 
special  master,  a  man  named  John  Williams,  from  Carmel  Valley, 
Carmel  Highlands,  California. 

John  was  a  hydrologist,  and  his  role  was  to  oversee 
continuing  scientific  work  in  an  effort  to  in  effect  refine  the 
physical  solution.   The  judge  knew  that  there  would  be  times  when 
his  physical  solution  wouldn't  let  the  utility  district  get  as 
much  water  as  it  said  it  needed,  and  I  think  one  point  of  the 
physical  solution  was  to  provide  a  safety  valve  so  that  we  could 
come  back  to  him  and  say,  in  times  of  need,  you  need  to  amend  the 
physical  solution  or  you  need  to  make  an  exception. 

I  think  he  also  kept  continuing  jurisdiction  because  he 
wasn't  convinced  of  the  fish  data  yet.   We  pretty  well  had  salmon 


and  steelhead  data  covered,  I  think,  and  yet  he  thought  that 
there  was  more  that  could  be  done.   I  think  he  thought  that  there 
was  more  that  could  be  done  with  other  species  of  fish,  shad,  for 
example,  or  maybe  with  some  of  the  organisms  in  the  lower  parts 
of  the  food  chain,  et  cetera.  Those  were  the  kinds  of  things 
that  John  Williams  cared  about  and  was  good  at  and  wanted  to  have 
more  of  a  say  in.   So  the  judge  wanted  to  leave  the  door  open  to 
in  effect  providing  other  forms  or  greater  protections  for  the 
fish,  as  well. 

So  he  really  tried  to  do  a  balancing  act.   Both  sides 
claimed  victory.   Rightly  so.   The  utility  district  could  take 
water,  but  not  at  the  times  it  needed  it  most,  and  therefore  was 
going  to  have  to  do  something  to  accommodate  that.  The  county 
could  say  and  the  environmental  groups  could  say  that  they  had  in 
effect  stymied  East  Bay's  efforts  to  take  water  out  of  the  lower 
American.  And  they  thought  that  it  was  in  essence  going  to  block 
East  Bay  from  ever  being  able  to  proceed,  and  East  Bay  said  we 
can  proceed. 

And  that  was  to  be  the  beginning,  then,  of  East  Bay's  next 
round  of  its  water  supply  management  planning,  or  one  of  the 
beginnings  of  the  next  round.   Each  side  was  hard-pressed  when  it 
came  to  deciding  whether  or  not  to  appeal.  The  judge  worked  very 
hard  to  make  that  decision  a  hard  one  to  appeal.  And  nobody 
appealed.  He  kept  continuing  jurisdiction.  Technically,  I  guess 
that  means  the  case  is  still  in  trial. 

LaBerge:   Still. 

Maddow:   He  still  maintains  jurisdiction.   Now,  I  don't  know  what's  going 
on  with  that  continuing  jurisdiction  at  this  point.   I  know  that 
from  the  time  of  the  judge's  decision  in  early  1990,  I  guess  that 
was,  through  the  time  I  left  East  Bay,  every  year  East  Bay  put  up 
money  for  the  special  master,  and  periodically  went  down  to  see 
the  judge.   And  I  know  that  some  of  those  activities  continued 
after  my  departure  because  I've  talked  a  little  bit  to  Bob 
Helwick  and  one  of  the  fellows  on  the  engineering  staff  who  was 


the  primary  contact  with  Mr.  Williams, 
precisely  what  the  status  is  today. 

But  I  don't  know 

LaBerge:   But  you  were  allowed  to  take  water  from  Folsom  South  Canal. 

Maddow:   Yes.  With  restrictions  on  when.   In  other  words,  we  were  allowed 
to  take  from  the  Folsom  South  Canal  as  long  as  certain  flow 
levels  were  being  maintained  in  the  main  portion  of  the  river. 
We  were  limited  in  what  we  could  do  with  the  water.  This  was  a 
drinking  water  quality  case.  We  couldn't  take  this  water  and  go 
sell  it  to  somebody  else  to  use  for  crops .   We  were  supposed  to 
use  it  within  the  utility  district's  service  area.  It  wasn't 
supposed  to  be  to  help  out  people  down  in  San  Joaquin  County,  who 
felt  they  were  going  to  get  some  water  out  of  the  utility 
district's  contract. 

In  addition  to  the  flow  requirements,  we  could  only  take 
water  out  when  certain  flow  requirements  were  met  [reading] : 
"...  2000  cubic  feet  per  second,  October  15th  through  February, 
3000  cubic  feet  per  second  in  March  through  June,  and  1750  cubic 
feet  per  second  in  July  through  October." 

Plus,  in  addition  to  all  the  water  that  that  meant  was  set 
aside  and  not  available  to  us,  an  additional  60,000  acre-feet 
were  supposed  to  be  [reading]  "maintained  in  reserve  for  release 
upon  the  recommendation  of  the  Department  of  Fish  and  Game  in 
response  to  specific  fishery  requirements."1 

Now,  what's  interesting  about  all  those  provisions  is  that 
the  Bureau  of  Reclamation  owns  Folsom  Dam  and  Nimbus  Dam,  and 
they're  the  ones  who  control  the  valves,  and  their  water  rights 
were  not  before  the  state  board,  and  so  there's  a  serious 
question  as  to  what  this  decision  means  with  regard  to  the  entity 
which  controls  the  valves !   And  that ' s  always  been  one  of  the 
crowning  ironies  in  this  case.  East  Bay  started  off  this  case  by 
saying,  "You're  suing  the  wrong  party  because  we  don't  have  any 
water  rights.   It's  the  bureau.   You're  supposed  to  be  suing 

'EOF  v.  EBMUD  (1990)  Superior  Court,  Alameda  County,  No.  425955. 


them."  Federal  preemption.  That's  where  we  started  with  the 
demurrer  that  Judge  Brunn  sustained.  And  in  many  respects,  we're 
still  hung  up  on  that  point  because  the  bureau  is  not  a  party. 
And  the  bureau  is  not  bound  to  do  anything  with  this. 

On  the  other  hand,  this  does  hamstring  other  parties. 
Sacramento  County  can't  now  go  and  take  water  out  of  the  canal, 
either,  as  far  as  I'm  concerned.   I  don't  know  if  they  would 
agree  with  that.  But  because  Sacramento  County  is  so  hamstrung, 
as  I  understand  it,  the  utility  district  and  the  Sacramento  Water 
Forum,  which  is  a  whole  bunch  of  entities  up  there,  including  the 
county  and  the  city  and  other  stakeholders,  they're  now  talking 
about  a  compromise,  under  which  nobody  would  take  any  water  out 
above  the  lower  American. 

Instead,  they  all  would  take  water  out  further  downstream, 
below  the  stretch  where  all  the  recreational  and  fisheries  values 
are  supposed  to  be  concentrated,  and  then  pipe  it  right  back  up 
where  it  came  from.   They  would  run  a  parallel  pipe  from  sort  of 
down  towards  the  mouth  of  the  river,  by  the  1-5  bridge,  back 
upstream  to  the  water  treatment  plant  that  Sacramento  has  up 
there  at  H  Street. 

There  is  an  enormous  irony  in  that.  And  I  think  it's  a 
reasonable  approach.   I  commend  the  parties  who  have  reached  that 
compromise.   But  you  have  to  realize  how  we  got  to  that 
compromise.   We  got  there  because  of  all  the  political  rhetoric 
that  erupted  as  we  were  trying  to  deal  with  physical  solutions 
that  were  being  considered  at  the  time  we  were  at  that  state 
board  reference  proceeding.   That  polarized  people  into  thinking 
East  Bay  has  clout,  et  cetera,  and  that  prevents  the  city  and  the 
county  of  Sacramento  from  being  able  to  take  water  out  anyplace 
upstream  of  where  East  Bay  could  be  permitted  to  take  it  out. 


Assessment  of  the  Reference  Procedure 

LaBerge:  What  do  you  think  about  the  reference  procedure? 

Maddow:   It  was  very  cumbersome.  It  had  less  flexibility  than  we  would 

have  liked.   The  judge  sent  the  board  twenty-one  questions.   The 
parties  were  allowed  to  kind  of  supplement  with  some  additional 
questions.  Even  though,  you  know,  we  had  to  pay  for  it  and  that 
sort  of  thing,  but  the  state  board  really  didn't  have  all  the 
resources  it  would  have  been  nice  to  have  had  available  for  this 
type  of  proceeding. 

On  the  other  hand,  it  did  allow  the  court  to  take  advantage 
of  the  special  knowledge  and  expertise  of  the  state  board.  My 
biggest  complaint  is  that  when  the  state  board  finished  its  work, 
the  court  was  able  to  ignore  it. 

LaBerge:   Yes. 

Maddow:   And  so  my  concern  goes  back  to  those  provisions  of  EDF  II  and  the 
Audubon  decision,  which  say  that  there  is  concurrent 
jurisdiction.   I  think  from  the  standpoint  of  California  law,  it 
would  be  better  in  the  long  run  if  there  was  more  deference  given 
to  the  actions  of  the  state  board,  and  in  fact  it  would  just  be 
in  the  nature  of  mandamus  review  as  opposed  to  trial  de  novo, 
when  the  matter  comes  back  to  the  state  board. 

On  the  very  first  day  of  the  trial  before  Judge  Hodge,  the 
very  first  subject  that  was  discussed  was  concurrent 
jurisdiction.   There  was  this  delightful  colloquy  between  Judge 
Hodge  and  Art  Littleworth  about  the  fact  that  when  Justice 
[Allen]  Broussard  wrote  the  opinion  of  the  supreme  court  in  the 
Audubon  case,  the  public  trust  case,  he  in  essence  said  that  the 
question  of  whether  or  not  the  courts  and  the  state  board  have 
concurrent  jurisdiction  is  a  close  call.   If  Justice  Broussard 
had  ruled  the  other  way,  we  might  have  had  a  different  result. 
We  would  not  have  had  a  six -week  trial  and  all  of  that. 


Last  time  I  saw  Justice  Broussard,  before  he  passed  away,  I 
bumped  into  him  in  Costco,  and  he  vaguely  recognized  me  because  I 
had  actually  been  before  him  when  he  was  on  the  superior  court 
bench.   I  told  him  who  I  was,  and  I  told  him  about  that  colloquy 
between  Littleworth  and  Hodge,  and  he  kind  of  sparkled.  He 
remembered  that  part  of  the  decision.  We  really  didn't  talk  much 
about  it  [smiling],  but  I  remember  he  kind  of  lit  up  about  that. 

That's  my  principle  criticism  of  the  way  the  Section  2000 
reference  proceeding  worked.   It  was  inefficient.  But  while  it 
was  actually  going  on,  it  was  cumbersome,  and  the  state  board 
knew  that,  too.   It  wasn't  a  real  convenient  way,  real  flexible 
way  to  do  it.   If  the  reference  order  had  been  written  by  a  judge 
who  was  a  little  more  engaged  than  Judge  Bancroft  was  at  that 
time,  and  that's  not  a  criticism;  it's  just  that  he  was  not  as 
engaged  as  he  might  have  been  had  he  not  had  the  trial  calendar 
he  did  when  we  were  there  before  him.   He  had  a  terrible 
calendar,  and  so  he  was  trying  to  fit  us  in.   He  didn't  dig  into 
our  case  as  much  as  he  might  otherwise  have  done.   Had  he  done 
so,  we  might  have  been  able  to  get  a  more  flexible  and  more 
workable,  a  more  efficient  reference  order,  but  we  didn't  have 
one,  and  so  we  started  off  with  a  kind  of  inflexible  and 
cumbersome  mechanism,  and  it  didn't  get  a  lot  better. 

In  terms  of  what  the  state  board  did  to  carry  out  its 
responsibilities,  I  give  a  lot  of  credit  to  that  staff.   I  think 
they  did  a  pretty  good  job.   I  think  their  lawyer,  in  particular, 
did  a  very  good  job.   State  Water  Resources  Control  Board  needs 
to  be  a  better-funded  and  better-staffed  organization  than  it  is 
as  California  state  government  now  works.   In  particular,  it 
would  need  that  if  we  get  away  from  the  concurrent  jurisdiction 
stance  that  the  current  law  had  has  us  in. 


Principle  of  Concurrent  Jurisdiction 

[Interview  5:  May  23,  1997] 

LaBerge:  Well,  the  last  time  we  were  talking  about  the  American  River 

controversy.  We  sort  of  had  wrapped  it  up  except  for  a  couple  of 
comments  about  the  State  Water  Resources  Control  Board. 

Maddow:   I  wanted  to  talk  for  just  a  minute  about  the  principle  of 

concurrent  jurisdiction.   One  of  the  things  that  the  district 
endured,  I  think  somewhat  painfully,  in  the  American  River 
litigation  was  the  fact  that  the  case  had  to  be  tried  a  couple  of 
times.  As  we  discussed  before,  there  was  a  reference  to  the 
state  board  by  the  superior  court,  and  the  state  board  spent  a 
very  long  time  and  a  great  deal  of  money,  half  of  which  was 
district  money,  coming  up  with  a  very  extensive  report. 

The  report  was  then  sent  back  to  the  court,  and  as  I  think 
I've  told  you  before,  when  the  court  received  it,  we  went  through 
a  change  of  judges.   It  ended  up  with  Judge  Hodge.  And  when  the 
report  came  back  to  him,  in  effect  the  judge  decided  that  he  was 
going  to  hear  the  case  all  over  again. 

That  led  to  an  interesting  colloquy  on  the  very  first  day  of 
the  trial.   Right  at  the  beginning  of  the  trial,  the  judge  had 
received  extensive  papers  about  what  his  role  was  and  what 
opportunities  he  had  and  that  sort  of  thing,  and  there  was  quite 
a  bit  of  discussion  of  the  principle  of  concurrent  jurisdiction. 
You  see,  when  the  state  board  had  received  the  case  from  the 
superior  court,  it  was  because  the  court  followed  a  provision  of 
the  Water  Code  which  indicates  that  the  state  board  can  serve  as 
a  referee  in  regard  to  disputes  over  claims  to  water,  and  the 
board  is  supposed  to  be  able  to  do  so  because  of  its  particular 
expertise  and  knowledge. 

Then,  when  its  report  came  back  to  the  court,  the  court  had 
the  ability  to  simply  disregard  it  because  the  state  doctrine  of 
law  is  called  concurrent  jurisdiction.  In  other  words,  the  court 


and  the  board  have  equal  opportunity  to  have  a  full-blown  trial 
on  the  facts.   If  the  doctrine  of  concurrent  jurisdiction  was  not 
in  effect,  what  would  happen  is  the  state  board  would  make  its 
decision,  and  then  the  matter  would  come  back  to  the  court,  and 
the  court  would  review  the  state  board's  decision  under  the 
standards  of  some  form  of  administrative  review.  The  court  would 
review  to  see  if  the  state  board's  decision  was  supported  by 
substantial  evidence  in  light  of  the  whole  record  or  some 
standard  like  that,  but  it  would  not  have  a  trial  de  novo. 

Well,  in  this  case,  it  was  pretty  clear  that  trial  de  novo 
was  the  standard.  On  the  first  day  of  the  trial,  the  judge,  with 
almost  his  first  comments,  addressed  that  question.  Art 
Littleworth,  who  was  the  district's  counsel,  quickly  rose  to  his 
feet,  and  there  was  a  fascinating  colloquy  between  Art  and  the 
judge  about  the  decision  of  the  supreme  court  in  1983,  the  so- 
called  Mono  Lake  decision,  National  Audubon  Society. 

In  that  case,  Justice  Broussard,  who,  of  course,  came  out  of 
Alameda  County,  had  written  the  decision,  and  he  had  indicated  in 
his  decision  that  whether  or  not  to  give  deference  to  the  state 
board  was--I  think  this  is  a  quote—he  said,  "It  was  a  close 
call."  And  he  ruled  in  what  for  him  was  obviously  a  difficult 
decision  that,  in  fact,  concurrent  jurisdiction  would  still  apply 
in  issues  involving  arguments  about  the  public  trust  and  matters 
like  that. 

Had  he  resolved  that  close  call  another  way,  we  would  not 
have  had  to  try  the  case  again  before  Judge  Hodge  after  having 
tried  it  before  the  state  board.  And  so  I've  often  thought  that 
that's  an  area  of  state  law  that  some  time  in  the  future  will 
probably  be  looked  at  again,  when  the  courts  or  the  legislature 
are  attempting  to  determine  how  we  can  more  efficiently  get 
through  disputes  regarding  competing  and  conflicting  claims  to 
use  of  water  or  how  the  public  trust  and  public  interest 
arguments  are  to  be  integrated  with  more  traditional  water  rights 


From  my  perspective,  it  would  be  better  to  boost  the 
authority  and  responsibility  of  the  state  board  because  they  do, 
in  fact,  have  a  staff  and  considerable  reservoir  of  expertise. 
Bad  choice  of  words!  A  considerable  amount  of  expertise.  And, 
very  frankly,  the  trial  courts  in  this  state  are  virtually 
overwhelmed  even  when  they  are  at  their  best,  and  water  cases 
take  a  long  time.  They're  very  hard.  I  think  it  would  be  better 
to  leave  more  of  that  responsibility  with  the  state  board,  and  to 
fund  the  state  board  adequately  so  it  could  do  the  job. 

But  after  years  of  state  budget  cutting,  I  believe  the 
state  board  is  understaffed  and  underfunded  to  be  able  to  do  this 
very  well.   I  just  think  we  might  get  better  law,  however,  better 
decisions,  better  physical  solutions,  if  the  state  board  were 
better  staffed  and  funded,  better  recognized  as  having  that 
arbiter's  role,  and  if  their  decisions  were  treated  like 
administrative  decisions  that  could  only  be  overturned  if  there's 
an  absence  of  substantial  evidence  or  something  like  that. 

I  think  trial  de  novo  is  an  inefficient  way  to  deal  with 
these  matters.  And  the  best  discussion  of  this  problem  that  I've 
heard,  I  think,  was  that  colloquy  that's  on  the  record  from  the 
first  day  of  the  trial,  when  Art  Littleworth  and  Judge  Hodge  had 
their  little  discussion.   So.   Somebody  someday  will  pick  up  on 
that  and  write  a  law  review  article  or  maybe  draft  a  bill  around 
it  or  something  like  that,  but  we'll  just  have  to  see  how  that 
plays  out. 

LaBerge:   Was  that  Art  Littleworth ' s  opinion,  too? 

Maddow:   Yes,  I  think  it  was.   I  believe  at  the  time  we  all  thought  that 
the  investment  of  some  four  years  of  effort  and  I've  forgotten 
the  amount  of  money,  but  it  was  in  excess  of  a  half  a  million 
dollars  [$500,000]  in  district  money,  as  I  recall,  at  the  state 
board  was  a  considerable  effort.  Although  none  of  us  thought  the 
state  board's  report  of  referee  was  perfect,  we  all  thought—and 
I  believe  it's  fair  to  say  even  some  of  the  plaintiffs'  attorneys 
thought—that  the  state  board  had  done  a  reasonably  thorough  job 


of  at  least  outlining  all  the  issues.  There  were  some  arguments 
about  how  they  resolved  some  of  the  issues. 

Everyone  was  a  little  unhappy  about  the  decision,  which 
probably  means  it  was  pretty  good.  But  whatever  it  was,  it's 
just  kind  of  a  footnote  now  because  it  just  sits  on  people's 
desks  or  on  people's  bookshelves.  But  there  was  a  lot  of  good 
work  that  went  into  it,  in  particular  a  lot  of  good  fisheries 
work.  You  almost  feel  like  it  was  wasted  when  you  have  to  go 
back  and  do  it  again  in  that  other  kind  of  pressure  cooker  that 
you're  in  when  you're  in  a  superior  court. 

LaBerge:  Well,  I  don't  know  if  this  is  off  the  subject  but,  for  instance, 
the  National  Labor  Relations  Board?  Are  their  decisions  taken 
differently  than  that  of  the  State  Water  Resources? 

Maddow:   Yes.  The  general  rule  with  administrative  agencies  is,  in  both 
state  law  and  federal  law,  that  if  they  have  conducted  their 
hearings  and  their  proceedings  in  accordance  with  the  statutes 
that  they  are  supposed  to  follow,  that  they  may  only  be 
overturned  in  the  absence  of  substantial  evidence  or  something 
like  that,  or  if  there  was  an  arbitrary  and  capricious  decision. 
The  courts  would  review  a  decision  like  that  almost  in  the  way  in 
which  an  appellate  court  would  review  a  decision  of  a  trial 
court . 

The  concurrent  jurisdiction  doctrine  in  California  water 
law  is  sort  of  an  aberration  from  what  I  would  consider  to  be  the 
norm  in  administrative  law.  The  California  system  is  not  the 
only  system  that's  around.   In  some  other  states,  rather  than 
have  a  water  resources  control  board  do  it  as  an  administrative 
matter,  [they]  have  a  whole  separate  system  of  law  courts  to  deal 
with  water  matters.   For  example,  in  the  state  of  Colorado.   And 
that's  an  alternative.  That's  not  the  way  it  has  been  done  in 
California.   I  don't  know  if  anybody  has  ever  really  seriously 
looked  at  that.   Perhaps  the  Governor's  Commission  on  California 
Water  Law  did--I  can't  recall  now.  That  was  an  effort  chaired  by 
former  Chief  Justice  Donald  Wright,  and  its  report  and  several 
studies  are  available  in  libraries.   The  state  board  is  a  pretty 

big  organization, 


It's  a  pretty  big  state.  Lots  of  complex 

I  think  the  better  way  would  be  to  give  the  state  board  some 
independence,  sort  of  separate  them  from  other  parts  of  state 
government  in  the  manner  in  which,  for  example,  the  Fair 
Political  Practices  Commission  is  separated  from  other  parts  of 
state  government.  Allow  them  to  make  decisions  that  are  binding 
and  not  subject  to  concurrent  jurisdiction. 

Many  of  their  decisions  are  of  that  nature,  but  it's  just  in 
these  areas  where  there  are  certain  types  of  disputes  and  these 
reference  proceedings  and  things  like  that  where  you  have  this 
aberrational  doctrine  of  concurrent  jurisdiction  that  I  think  is 
troublesome.   And,  of  course,  we  have  it  in  the  area  of  the 
doctrine  of  public  trust.   Public  trust  cases,  I  think,  as  the 
law  has  evolved,  are  looking  more  and  more  like  water  rights 
cases  all  the  time.   I  would  prefer  to  see  the  public  trust 
doctrine  expressly  treated  on  a  par  with  or  as  a  part  of  the 
water  rights  process.   Put  it  all  before  a  body  with  authority 
and  responsibility  to  resolve  these  disputes,  and  a  body  for 
which  the  decisions  would  receive  more  deference  than  they  do 

Public  Trust  Doctrine 

LaBerge:   You  have  referred  to  the  public  trust  doctrine.   Can  you  talk  a 
little  bit  about  it?  What  it  is. 

Maddow:   I'm  sure  not  an  expert,  and  I  probably  should  have  done  a  little 
more  homework  if  I  had  been  thinking  about  that,  but  essentially 
the  public  trust  doctrine  is  a  doctrine  that  was  determined  by 
the  supreme  court  in  the  Audubon  case  in  1983,  to  exist  in 
parallel  with  the  water  rights  doctrine.   It  says  that  there  is 
in  essence,  as  a  part  of  the  existence  of  the  state,  there  is 
within  the  interests  of  the  public  this  broad  public  trust 


responsibility  that  deals  with  issues  other  than  the  proprietary 
interests  in  water.   In  other  words,  interests  related  to 
fisheries,  wildlife,  other  interests  which  may  not  necessarily  be 
the  subject  of  a  water  right,  are  in  fact  entitled  to  protection 
by  the  courts.  They  can  be  the  basis  of  a  lawsuit  attacking  the 
use  or  method  of  use  or  point  of  diversion  of  a  water  supply. 

In  water  rights  law,  there  has  always  been  a  public  interest 
element  that  has  to  be  dealt  with,  in  addition  to  the  classic 
things  about,  you  know,  flow,  et  cetera,  that  you  deal  with  In 
determining  a  water  right.  But  the  public  interest  component  was 
never  viewed  as  broadly  by  the  state  board  or  the  courts  as  some 
people  thought  it  should  be.   So  in  effect  the  parties  in  the 
Mono  Lake  case,  the  Audubon  Society  in  particular,  some  of  the 
other  groups,  brought  in  some  very  old  principles — I  guess  it 
really  goes  all  the  way  back  to  Roman  law,  this  principle  of  this 
broader  public  trust  that  exists  independent  of  the  statutory  law 
systems  and  which  can,  in  fact,  be  a  basis  for  a  determination 
whether  a  particular  use  of  water  is  appropriate  or  in 

If  we  do  have  another  interview,  let  me  do  a  little 
homework — it's  been  years  since  I've  looked  back  at  some  of  those 
fundamentals,  and  I  just  want  to  refresh  my  memory  a  little  bit 
because  I  know  some  of  the  terminology  I'm  using  is  slightly  off. 
But  the  key  thing  to  realize  about  the  public  trust  doctrine  was 
until  1983  we  didn't  know  we  had  it  in  water  law.  And  starting 
in  1983  we  suddenly  discovered  that  any  time  you  were  dealing 
with  conflict  or  competition  among  competing  uses  for  water,  in 
addition  to  dealing  with  the  traditional  elements  of  a  water 
rights  dispute,  you  would  have  to  think  about  this  other 
doctrine,  this  other  set  of  legal  principles,  called  the  public 

It  still  isn't  really  easy  to  know  where  the  public  trust 
starts  and  stops,  and  water  rights  doctrine  starts  and  stops,  and 
how  they  are  integrated.  There  are  a  number  of  law  review 
articles  and  matters  like  that  that  you  can  find.  You  can  find 
it  discussed  in  a  few  cases,  not  very  many  yet.   The  legislature 


has  never  really  dabbled  in  the  field.  And  so  it  still  is 
fraught  with  some  uncertainty.  The  state  board  attempts  to  deal 
with  the  public  trust  in  its  decisions,  but  very  few  court 
decisions  have  discussed  it. 

Art  Littleworth  and  one  of  the  other  attorneys  who  worked  on 
the  American  River  litigation  for  East  Bay,  a  man  named  Eric 
Garner,  have  written  a  book  called  California  Water.   It's 
published  by  the  Solano  Press.   It's  a  paperbound  book.  It  came 
out  I  think  in  1995. l 

LaBerge:   I've  looked  at  part  of  it.   [Pulling  out  a  copy] 

Maddow:   Yes,  that's  it.   And  they  have  a  discussion  in  there  of  the 
public  trust  that  is  a  pretty  good  primer. 

Water  Quality  Issue 

LaBerge:   I  don't  think  we  talked  about  this.   The  issue  of  water  quality 
and  how  that  affected  the  outcome  of  the  case.   Had  that  been 
used  before? 

Maddow:   Oh,  yes.  But  it  perhaps  got  taken  to  a  little  higher  plane  in 
the  American  River  litigation  than  it  had  been.   Fundamentally, 
the  decision  that  the  superior  court  made  in  the  American  River 
litigation  says  that  there  are  very  important  issues  related  to 
recreation  and  fishery  uses  of  the  lower  American  River  that  have 
to  be  taken  into  account  in  determining  whether  East  Bay  MUD  can 
implement  its  contract  with  the  federal  government  for  a  water 

And  weighed  against  those  interests  are  the  drinking  water 
quality  interests  of  the  people  of  the  East  Bay.   The  utility 

lArthur  L.  Littleworth  and  Eric  L.  Garner,  California  Water  (Point 
Arena,  CA:  Solano  Press  Books,  1995). 


district  had,  for  a  very  long  time,  well,  for  its  entire 
existence,  had  been  particularly  focused  on  source  protection,  and 
source  selection  as  the  best  guarantors  of  high-quality  drinking 
water  for  its  customers.  And  so  when  the  utility  district 
contracted  with  the  federal  government  for  a  water  supply,  it  did 
so  with  water  quality  being  the  principal  determinant  of  where 
the  water  would  be  taken  and  how  the  contract  would  work.  And, 
of  course,  water  quality  has  been  the  driving  factor  in  the 
siting  and  the  design,  construction,  and  operation  of  the  utility 
district's  Mokelumne  system  forever. 

In  the  American  River  litigation,  both  before  the  state 
board  and  before  the  court,  the  principal  dynamic  was  the 
interplay  between  the  fisheries  interests  and  the  water  quality 
interests.  And  the  question  that  the  judge  and  the  state  board 
really  had  to  deal  with  was:  Is  there  a  way  in  which  to  maximize 
the  high  quality  water  availability  for  drinking  water  purposes 
while,  at  the  same  time,  maximizing  the  availability  of  water  for 
fisheries  and  recreation  and  other  non-consumptive  beneficial 

That's  a  hard  dynamic.  It's  similar  to  the  dynamic  that  you 
can  read  about  in  the  newspapers  here  now  with  regard  to  one  of 
my  current  clients,  Contra  Costa  Water  District,  where  there  is  a 
reservoir  which  is  owned  by  the  federal  government,  operated  by 
the  water  district,  which  has  a  recreational  presence  that  is 
operated  by  a  park  district. 

LaBerge:  Which  is  it? 

Maddow:   It's  called  Contra  Loma  Reservoir,  out  in  Antioch.  And  for 

virtually  the  whole  existence  of  the  reservoir  under  the  lease 
that  the  federal  government  entered  into  with  the  park  district, 
there  has  been  swimming  in  the  reservoir.   But  the  reservoir  was 
always  a  backup  reservoir.   Drinking  water  use  was  not  its 
primary  purpose.   That  has  changed  over  the  years,  as  the 
population  growth  and  the  evolution  of  water  use  in  the  water 
district  has  taken  place.  And  now  the  reservoir  is  used  much 
more  frequently  for  drinking  water  purposes. 


It  has  kind  of  crossed  the  line  in  the  minds  of  the 
Department  of  Health  Services,  which  is  the  regulatory  agency, 
and  they  are  saying,  "Oh,  if  you're  using  this  reservoir  as  much 
as  you  say  for  water  supply  purposes ,  then  there  can  be  no 
swimming  in  that  reservoir,"  because  bodily  contact  is  prohibited 
in  a  drinking  water  reservoir.  There  is  state  law,  and  there  are 
state  regulations  on  the  subject. 

Well,  this  is  just  starting  to  happen,  and  there  are  debates 
in  public  forums  and  in  the  newspapers  about  whether  that 
recreational  use—this  is  the  backyard  swimming  hole  for  hundreds 
or  thousands  of  people- -whether  that  recreational  use  should  hold 
sway  over  the  drinking  water  quality  and  public  health  uses.   And 
then  the  arguments  start  about,  well,  how  many  people  have  gotten 
sick,  or  how  good  is  your  data,  or  what  do  the  studies  really 
show,  and  these  kinds  of  things.  Those  are  hard  debates,  and 
they  don't  have  easy,  well-defined  answers,  wherever  they  are. 
Water  utilities,  from  a  policy  perspective,  err  to  the  side  of 
public  health  protection. 

Well,  that  debate  I  talked  about  is  kind  of  what  we  went 
through  in  the  American  River  litigation.   The  utility  district 
said,  "We've  got  a  need  for  high-quality  water."  The  judge 
agreed.  The  judge  based  his  decision  on  the  fact  that  the 
utility  district  was  contracting  for  a  drinking  water  supply,  and 
he  said  that  was  okay,  and  that  the  utility  district  could  get 
that  water  for  drinking  water  purposes,  as  long  as  enough  water 
remained  in  the  river  to  protect  the  recreation  uses.  And  "Oh, 
by  the  way,"  he  said,  "this  is  drinking  water." 

So  the  utility  district  can't  give  some  of  it  or  sell  some 
of  it  to  people  in  San  Joaquin  County  who  have  been  wanting  some 
of  that  same  water  for  farming.  This  is  drinking  water.  And  if 
it  isn't  needed  for  drinking  water,  East  Bay  doesn't  need  to  take 
it  out  of  this  place  way  upstream  in  the  American  River,  where  it 
has  a  higher  quality.   If  they  just  need  it  for  farming,  they  can 
take  it  out  of  the  Delta.   Or  they  can  take  it  at  another 
diversion  point.   That  was  sort  of  the  theory  of  it. 


So  that  dynamic  between  water  quality  and  fisheries  issues 
and  recreation  issues  was  a  constant,  and  it  was  right  at  the 
heart  of  the  case  at  all  times.  The  utility  district  brought  in 
some  of  the  nation's  leading  water  quality  experts.  Dr.  Dan±el 
Okun,  from  the  University  of  North  Carolina,  who  is  sort  of — the 
French  would  call  him  the  eminence  grls  of  water  quality.  A  man 
named  Dr.  Bob  Harris,  who  had  been  with  the  Environmental  Defense 
Fund  years  ago  and  whose  work  regarding  drinking  water  quality 
was  very  largely  credited  with  the  passage  of  the  first  version 
of  the  national  Safe  Drinking  Water  Act.  And  another  man  whose 
name  has  just  flown  from  my  head,  who  was  the  guy  who  came  in  and 
talked  about  a  water  quality  parameter  that  had  just  been 
identified  and  hadn't  been  named  yet,  and  we  called  it  MX.   [I 
think  his  name  was  Dr.  Karim  Ahmed.] 

But  we  had  very  good  water  quality  people  and  a  tremendous 
amount  of  data.  And  the  issue  at  that  time  ended  up  coming  down 
to  something,  largely  came  down  to  something  called 
trihalomethane  formation  potential,  THMFP.   That's  what  happens 
when  you  apply  chlorine  as  a  disinfectant  to  a  water  supply  which 
contains  organic  materials.  Depending  upon  what  organic 
materials  are  in  the  water  supply,  the  byproduct  of  disinfecting 
with  chlorine  or  with  some  other  disinfectants  can  be  some  form 
of  a  THM,  a  trihalomethane.  And  depending  upon  what  you  start 
with  and  which  form  of  THM  you  end  up  with,  you're  going  to  get 
one  form  or  another  of  a  carcinogen,  of  a  cancer-causing  agent, 
or  perhaps  of  a  mutagenic  agent.   Carcinogenicity  and 
mutagenicity.   (I  thought  I  forgot  those  words.   Don't  ask  me  to 
spell  them. ) 

There's  been  a  lot  of  science  on  this,  and  there  is  a  lot  of 
regulatory  activity.  We  were  trying  these  cases  at  a  time  when 
some  of  those  regulations  were  still  evolving,  but  fundamentally, 
the  issues  that  we  were  dealing  with  were  whether  or  not  the 
utility  district  would  continue  to  be  able  to  obtain  a  water 
supply  which  was  relatively  low  in  trihalomethane  formation 
potential  and  similarly  low  in  salinity,  turbidity,  and  some  of 
the  other  things  that  can  bring  with  them  other  forms  of 
contaminants . 


Delta  water  is  higher  in  organics,  salinity,  turbidity,  and 
all  the  other  things,  and  so  the  fundamental  for  East  Bay  has 
always  been,  stay  away  from  the  Delta  if  you're  looking  for 
drinking  water  quality.   I  think  I  told  you  in  an  early  interview 
about  Governor  [George]  Pardee  and  when  East  Bay  MUD  was  formed. 
He  campaigned  against  an  entity,  a  privately -owned  utility  that 
wanted  to  stay  in  business  by  keeping  the  utility  district  from 
being  formed.  They  said,  "We've  got  a  good  enough  water  supply 
from  the  Delta.   We  can  perfect  that,  and  you  don't  need  this 
expensive  Mokelumne  supply."  And  Governor  Pardee 's  statement  to 
the  newspapers  was ,  "The  Delta  is  where  salt  and  sewerage  meet . " 
I  think  it  was  1923. 

And  that's  still  a  fundamental  today.  East  Bay  MUD's 
proposal  now,  with  Sacramento  County,  to  implement  the  American 
River  Project  by  this  new  means  that  they  have  been  negotiating 
between  themselves,  after  having  litigated  for  twenty  years,  it 
will  take  the  water  around  the  Delta  so  that  East  Bay  can  still 
say  it's  getting  its  water  from  as  close  as  possible  to  the 
"snowflake."  That's  kind  of  what  East  Bay  MUD's  mantra  has  been 
for  a  very  long  time.1 

That  was  a  very  long-winded  answer  to  a  good  question. 

Attorney  General  and  the  State  Lands  Commission 

LaBerge:   Going  back  to  the  American  River,  did  the  attorney  general  have 
any  role  in  any  of  that  litigation? 

Maddow:   Yes.   Early  on  in  the  case,  starting  back  in  the  seventies,  the 
Department  of  Fish  and  Game  sought  to  intervene  in  the  case,  and 
when  it  did  so,  it  was  frustrating  to  the  utility  district  in  a 

of  2001,  EBMUD  is  planning  to  divert  water  from  Freeport,  on  the 
Sacramento  River,  rather  than  from  any  diversion  point  on  the  American 
River  or  Folsom  South  Canal. 


number  of  respects.  But  the  California  attorney  general  did  come 
into  the  case  on  behalf  of  the  Department  of  Fish  and  Game,  which 
opposed  the  efforts  of  the  utility  district  to  implement  its 
water  supply  contract. 

LaBerge:  Who  was  it  at  that  time? 

Maddow:   Who  was  the  attorney  general  at  the  time?  Well,  I  have  to  think 
back.  At  one  point,  early  on,  when  this  was  first  going  on,  as  I 
recall,  it  was  Evelle  Younger.   And,  as  I  recall  there  was  a  time 
when  Jack  Reilley  was  trying  to  meet  him  in  Los  Angeles,  I  think 
it  was,  and  Jack's  plane  couldn't  fly  because  of  fog  or 
something,  and  I  remember  he  was  inordinately  frustrated  by  that. 
I  think  he  ultimately  did  meet  with  ±he  attorney  general,  and  I 
know  he  was  very  frustrated  by  his  inability  to  persuade  them 
that  they  didn't  belong  in  that  case. 

But  they  did  come  in,  and  were  represented  during  much  of 
the  trial  by  a  woman  named  Mary  Hackenbracht .   She  was  quite  a 
good  attorney.  Another  woman,  deputy  attorney  general,  named 
Sarah  Russell,  who  lives  up  here  in  the  Berkeley  hills,  and  who 
later  lost  her  home  in  the  fire--she  was  also  in  the  case  for  a 
while,  as  I  recall. 

Late  in  the  process,  another  state  agency,  the  State  Lands 
Commission,  also  intervened  and  was  represented  by  a  third  deputy 
attorney  general  named  Matt  Rodriguez,  who  is  also  a  very  good 
attorney.  The  State  Lands  Commission  has  jurisdiction  over  the 
bed  and  banks  of  streams,  and  they  intervened  in  effect  to  deal 
with  issues  related  to  water  levels  and  matters  of  that  nature 
that  primarily  related  to  recreation  in  the  lower  American. 

I  always  thought,  without  knowing,  that  one  of  the  reasons 
why  the  State  Lands  Commission  intervened  is  that  its  executive 
directors,  first  a  woman  named  Claire  Dedrick,  who  had  been 
secretary  for  resources  under  Jerry  Brown,  and  then  Charlie 
Warren,  who  had  been  an  assemblyman  and  was  author  of  Energy 
Commission  legislation  and  that  sort  of  thing.  He  later  was  the 
Lands  Commission  executive  officer.   I  frankly  think  that  they 


wanted  to  get  into  the  case  because  there  were  issues  that  were 
of  concern  from  an  environmental  standpoint  that  weren't 
necessarily  related  solely  to  bed  and  banks  of  streams  but  were 
close  enough,  and  so  they  took  a  very  active  interest  in  the  case 
there  in  the  eighties.  And  Matt  Rodriguez  was  a  very  capable 
attorney  for  the  state  in  that  matter. 

With  all  due  respect  to  the  attorneys  general,  the  deputies 
who  were  in  the  case,  I  would  have  to  say  that  their  role,  while 
important,  was  not  as  significant  as  was  the  role  of  the  other 
attorneys,  in  particular  for  Sacramento  County  and  for  the 
Environmental  Defense  Fund.   Sacramento  County  was  represented  up 
through  the  end  of  1983  by  the  county  counsel,  Mr.  Lee  Elam.   And 
then,  when  the  settlement  of  the  case  blew  up,  they  turned  to  a 
law  firm  called  McDonough  Holland  &  Allen. 

Martin  McDonough  had  been  one  of  the  state's  leading  water 
lawyers.   I  think  by  that  time  Martin  had  retired  or  perhaps 
passed  away.   But  in  any  event,  when  we  first  started  the 
activities  in  the  trial  court,  a  man  from  that  firm  named  Dennis 
DeCuir,  represented  them,  and  then  Stuart  Somach  came  into  the 
case  as  soon  as  he  could  after  having  left  the  interior 
department  solicitor's  office.  And  Stuart  was  the  lead  lawyer  on 
the  case,  ably  backed  up  by  a  young  man  named  Paul  Simmons,  who 
is  an  absolutely  first-rate  lawyer.   They  are  now  with  a  firm 
called  DeCuir  &  Somach1,  which  is  a  very  active  water  law  firm. 

Tom  Graff  was  the  principal  litigator  for  the  EOF  in  the 
early  years.  But  actually,  as  it  came  down  to  the  trial,  John 
Krautkraemer  played  a  much  more  significant  role.  And  John  and 
Tom  each  did  play  a  role  at  the  time  of  the  trial.   John  did  most 
of  the  work.   Tom  was  a  significant  force,  of  course.   Tom  is 
just  a  terrific  guy.  and  terrific  lawyer.  And  John  Krautkraemer  I 
can  say  the  same  things  about.   John  was  killed  in  a  tragic 
skiing  accident  here  about  three  years  ago.   Otherwise,  he  would 
be  one  of  those  people  who  would  be  known  on,  I  think,  a  national 
scale  as  an  outstanding  environmental  lawyer,  like  Tom. 

is  now  called  Somach,  Simmons,  and  Dunn. 


The  attorney  general's  office  was  effective  and  omnipresent 
and  wrote  some  good  briefs  and  that  sort  of  thing,  but  the  lead 
role  was  really  Sacramento  County  and  John  Krautkraemer  in  the 

EBMUD  Board  Support 

LaBerge:  On  the  American  River  issue,  what  kind  of  board  support  did  you 

Maddow:   Outstanding  board  support.  And  let  me  explain  that  briefly.   I 
know  time  is  short.  As  I  mentioned  to  you,  I  became  general 
counsel  right  at  the  beginning  of  January  of  1984,  and  it  was  on 
my  second  or  third  day  in  the  chair,  so  to  speak,  that  we  learned 
that  the  proposed  settlement  Jack  Reilley  and  Bob  Helwick  had 
worked  out  had  blown  up.   So  as  quickly  as  I  could,  1  arranged 
for  a  closed  session  with  the  board  of  directors,  in  conjunction 
with  a  board  meeting. 

You  have  to  remember  that  at  that  time  the  board  consisted 
of  sort  of  a  six-person  majority  and  one  outspoken  person  who  was 
frequently  in  the  singular  minority,  and  that  was  Helen  Burke.   I 
was  very  concerned  about  how  we  were  going  to  maintain  the  fight 
that  I  could  see  was  coming  in  that  litigation,  and  do  so  without 
splitting  the  utility  district  down  the  middle  in  some  way. 

Keeping  Options  Open 

Maddow:   So  the  approach  that  I  took,  and  I'm  going  to  say  this  very 
carefully  because  I'm  not  going  to  reveal  anything  that  was 
something  that  happened  in  a  closed  session.   But  I've  said  this 
much  publicly  in  board  meetings,  and  so  I  don't  mind  saying  it 
here.   The  approach  that  I  took  was  always  to  say  that  the  role 


that  the  lawyers  were  seeking  to  play  in  defending  in  that  case 
was  to  keep  the  utility  district's  options  open  to  the  greatest 
degree  possible.  Options  in  terms  of  use  of  the  American  River 
contract  for  its  supplemental  water  supply  in  some  way. 

We  had  unanimous  support  of  the  board  in  taking  that 
approach.  We  had  that  unanimous  support  throughout  the  time  that 
I  was  general  counsel.   I  suspect  that  Bob  Helwick  still  has  it. 
The  board's  interests  in  the  American  River  contract  have  taken 
on  lots  of  different  shapes  and  forms  in  the  period  of  time  since 
1984,  but  the  lawyers'  role  has  been  to  keep  the  maximum  number 
of  options  open.  And  there  has  been  unanimous  and  consistent 
board  support  of  that,  to  the  best  of  my  knowledge. 

That  doesn't  mean  there  was  always  board  unanimity  in  terms 
of  whether  to  implement  the  contract  or  how  to  implement  it.   But 
keeping  the  options  open  was  important  to  the  board,  and  I  think 
that  we  were  quite  successful  in  doing  that.   Not  entirely 
successful.   Quite  successful. 

Financial  Support 

Maddow:   The  other  thing  that  is  bound  up  in  your  question  is  financial 
support  for  that  effort,  and  the  board  made  the  American  River 
contract  defense  a  high  priority  from  a  budgetary  standpoint. 
That's  not  to  say  that  we  could  do  whatever  we  want,  run  amok, 
and  all  of  that.  We  had  to  manage  that  effort,  and  did  so.   But 
we  were  told  that  in  the  long  view,  which  is  how  you  have  to  look 
at  issues  like  this,  that  this  was  the  most  important  thing  the 
district  had  going  on  with  regard  to  its  future  water  supply. 
And  so  that  long  view  was  consistently  taken  by  all  of  the 
directors  for  whom  I  worked  during  my  tenure  as  general  counsel. 

And  I  think  that's  real  important,  because  I've  seen  other 
agencies  that  have  not  had  that.   So  I  took  a  kind  of  a  quiet 
pride  in  that  because  I  worked  very  hard  to  make  sure  that  the 


board  was  understanding,  at  least  as  I  saw  it,  in  that  long  view. 
The  case  was  not  an  inexpensive  one  to  maintain.  The  law  firm 
that  represented  the  utility  district  was  in  Riverside,  and  so — 

LaBerge:  This  is  Art  Littleworth? 

Maddow:   Art  Littleworth' s  firm,  Best,  Best  &  Krieger.   During  the  height 
of  the  trial,  which  went  on  over  a  two-month  period,  generally 
four  days  a  week  for  two  months,  and  then  some,  we  actually  had 
six  lawyers  from  Riverside  who  were  housed  here.  We  rented  a 
large  apartment  down  on  A  Street  in  Hayward,  where  five  of  them 
lived,  and  then  the  sixth  one  lived  with  her  grandmother,  who 
fortunately  lived  not  too  far  away.   The  case  was  tried  in  the 
superior  court  out  in  Hayward- -not  in  Oakland. 

One  of  the  reasons  why  we  had  to  have  so  many  attorneys  was 
that  the  judge  insisted  that  each  of  the  parties,  both  sides,  if 
you  will,  each  week  would  produce  for  him  a  summary  of  what  they 
thought  had  happened  in  the  trial  that  week,  on  a  day-by-day 
basis.   So  we  set  up  a  computer  center  in  that  apartment.   We 
divided  our  case  into  really  three  different  parts,  with  Art 
taking  the  lead  role  in  most  of  the  legal  issues,  and  then  we  had 
a  fisheries  team,  and  then  we  had  a  water  quality  team. 

On  each  of  those  three  teams,  we  had  a  partner  and  an 
associate,  and  the  associate's  responsibility,  among  other 
things,  was  to  produce  those  summaries--almost  transcripts—on  a 
weekly  basis.   It's  the  only  trial  I've  ever  seen  handled  that 
way.   It  was  a  hard  thing  to  do  and  added  to  the  expense,  but 
that's  what  the  judge  wanted,  and  so  we  had  to  do  it. 

We  also  had  extensive  teams  of  experts ,  water  quality 
experts,  whom  I've  mentioned;  fisheries  experts,  quite  a  number 
of  them.   Chuck  Hanson  and  Don  Kelley  and  Dave  Vogel  and  on  and 
on.  And  we  had  recreation  experts,  a  lot  of  very  capable  people. 
Many  of  those  reports  written  in  that  litigation,  either  in  the 
state  board  or  in  the  court,  are  still,  I'm  sure,  being  used  as 
valuable  references  by  East  Bay  people,  and  by  others,  because  it 
was  first-class  work. 


I  don't  mean  to  belittle  the  work  on  the  other  side.  They 
had  good  people  doing  good  work  also.   I  just  think  that  the 
utility  district  had  the  stronger  cast  of  experts  and  did  a 
better  job  on  paper  with  its  experts.  And  I  think  that's  one 
reason  why  we  did  as  well  as  we  did. 



Disinfection  Process.  1997 

LaBerge:   Didn't  EBMUD  just  recently  change  how  they're  treating  the  water? 

Maddow:   Yes. 

LaBerge:   It's  new — to  eliminate  the  problem  of  THMFP? 

Maddow:   To  try  and  cope  with  the  whole  problem.  East  Bay  MUD  has  changed 
its  method  of  disinfection  in  some,  eventually  all—maybe  it's 
all  by  now—of  its  water  treatment  plants.   They're  doing  a 
couple  of  things.  For  safety  purposes,  they  moved  away  from 
liquid  chlorine  and  changed  to  some  oxide  of  chlorine.   This 
oxide  has  the  same  disinfectant  capabilities  as  does  chlorine, 
but  it's  more  like  using  household  bleach  than  it  is  like  liquid 
chlorine,  and  East  Bay  MUD  has  its  filter  plants  in 
neighborhoods,  and  so  chemical-handling  safety  was  an  issue. 

But  the  other  thing  East  Bay  MUD  is  doing  is  to  change  from 
using  chlorine  as  its  primary  disinfectant,  and  to  switch  to 
chloramines.   This  is  a  different  chemical  altogether.   With 
chloramines  in  particular,  when  they  are  used  in  combination  with 
ozone  as  disinfectant,  you  have  better  ability  to  disinfect  and 
not  produce  unwanted  disinfection  byproducts  than  if  you  use 
chlorine.   And  so  the  trend  in  the  nation  has  been  to  move  away 
from  liquid  chlorine  for  safety,  and  to  switch  to  chloramine  as  a 


disinfectant,  and  the  utility  district  is  consistent  with  those 
trends . 

The  utility  district  had  some  other  problems  related  to  a 
variety  of  aqueduct  and  distribution  system  difficulties  that 
caused  it  also  to  want  to  switch  to  other  means  of  disinfection, 
so  I  know  there  has  been  a  very  significant  investment  in  new 
treatment  plant  technology  and  modernization.  And  it  is  largely 
to  do  away  with  disinfection  byproducts  such  as . 
Frankly,  I  have  been  real  surprised  to  see  water  quality  reports 
in  the  last  few  years  which  show  East  Bay  is  producing  system- 
wide  THM  averages  of  around  eighty,  compared  to  the  national 
standard  of  100.   I  have  not  seen  the  data  on  a  plant-by-plant 
basis,  but  I  expect  these  numbers  will  drop  with  East  Bay's  new 

Chloramination  alone  doesn't  entirely  eliminate  the  water 
quality  problems.   After  all,  a  significant  part  of  the 
district's  water  supply  comes  in  from  high  in  the  Sierra,  gets 
piped  in,  but  then  is  at  least  temporarily  stored  in  San  Pablo 
Reservoir  or  Upper  San  Leandro  Reservoir  or  Briones  Reservoir, 
and  that  will  always  add  some  organics.   Therefore  the  quality  of 
water  coming  out  of  those  reservoirs  is  not  quite  as  high  as  the 
quality  of  water  that  comes  straight  off  the  aqueduct  and  goes 
through  a  treatment  plant  and  then  into  the  distribution  system. 

That's  why  you  find  the  best  water  quality --within  the 
utility  district,  all  water  is  of  high  quality.   The  highest 
quality  water  is  pretty  much  in  the  central  part  of  the  district 
or  in  some  parts  of  the  eastern  portion  of  the  district,  where 
the  water  that  goes  through  the  treatment  plant  comes  right  off 
the  aqueduct.   After  Pardee,  it's  never  been  sitting  in  a  lake. 


Recreation  and  Watershed  Protection 

LaBerge:  Yes.  Well,  you  know,  this  brings  us  to  another  issue  we  haven't 
really  discussed,  and  that's  just  the  whole  issue  of  recreation 
in  the  district. 

Maddow:   Jack  Reilley  probably  talked  about  this  in  his  book. 
LaBerge:  He  did  a  little  bit. 

Maddow:   He  lived  through  a  big  part  of  that.   As  a  part  of  its  water 

quality  ethic,  the  utility  district  was  always  very  interested  in 
watershed  protection.   When  there  began  to  be  pressures  to  open 
up  the  reservoirs  and  their  watersheds  for  public  access  for 
various  recreation  purposes,  frankly  at  the  beginning  the  utility 
district  was  not  keen  on  that  idea.   It  ended  up  with  a  variety 
of  state  legislation  and  other  happenings  that  resulted  in  the 
district  opening  up  some  of  its  watersheds  for  public  recreation 

It  is  all  done  in  a  very  controlled  way.  There  are  many 
forms  of  recreation  that  are  not  permitted.  Body  contact  is  not 
permitted  in  any  district  reservoir  except  Camanche,  which  is  not 
a  drinking  water  reservoir.  There  are  strict  limits  on  the 
activities  that  can  go  on  around  the  perimeter  of  the  watersheds. 
There  once  was  a  district  operations  manager  named  Gordon 
Laverty.  Gordon  always  used  to  talk  about  trying  to  protect  the 
cordon  sanita±re.   I  used  to  tease  him  about  that  sometimes 
because  I  thought  he  was  abusing  a  term  that  I  think  may  have 
been  created  back  in  the  days  of  influenza  outbreaks  of  a  pretty 
pandemic  nature. 

In  any  event,  the  principle  of  watershed  protection  and  the 
dynamic  with  recreation  was  a  strong  force  that  East  Bay  had  to 
deal  with  for  quite  some  time.   Now  the  utility  district  manages 
recreation  very  carefully.   There  is  fishing  and  boating  access 
to  Pardee,  which  is  drinking  water.   There  has  been  a  concession- 


type  operation  up  there  that  the  utility  district  has  operated 
for  decades,  or  has  had  operated  by  concession  contractors. 

In  the  local  watersheds,  the  biggest  operation  is  at  San. 
Pablo  Reservoir,  which  is  in  such  a  key  location  there,  nestled 
right  behind  Berkeley  and  San  Pablo  and  those  areas.  That's  a 
very  carefully  planned  and  managed  recreation  activity.  It 
produces  a  tremendous  fishery  because  it's  planted  and  I  believe 
there  are  natural  fish-spawning  activities  there,  too.  But 
primarily  with  planted  fish.   I  read  that  it  produces  the 
greatest  success  rate  of  fish  caught  per  angler  hour  of  any 
reservoir  in  the  Bay  Area,  and  that's  important  to  people  who 
fish.   San  Pablo  is  also  a  concession- type  recreation  operation. 

Maddow:   The  utility  district  has  two  other  local  reservoirs  where 

recreation  is  allowed.  One  is  at  Lafayette,  where  there  is  a 
district  operation.   At  least  by  the  time  I  left,  it  was  still 
operated  by  district  personnel,  as  opposed  to  by  concessionaires. 

Lake  Chabot 

Maddow:   Then  the  third  variation  is  at  Lake  Chabot  down  in  the  Castro 
Valley-San  Leandro  area,  where  the  property  was  leased  to  the 
East  Bay  Regional  Park  District,  which  operates  or  has 
concessions  for  recreation  activity  there.   Recreation  out  at  the 
Lake  Chabot  area  has  been  an  interesting  exercise.   Actually,  the 
Lake  Chabot  property  was  sold.   A  significant  portion  of  it  was 
originally  owned  by  the  army,  which  had  a  Nike  base  there,  a  Nike 
ground-to-air  missile  base  back  in  the  cold  war,  in  the  fifties. 

The  army  property  of  some  235  acres,  which  the  utility 
district  recovered,  eventually  was  sold  to  a  community  college 
district,  which  was  going  to  build  a  college  there,  with  all 
kinds  of  protections  for  water  quality  being  built  into  the 


property  agreement.  That  property  was  then  leased  to  the  park 
district  by  the  community  college  district,  and  in  that  lease,  as 
well  as  a  lease  of  some  utility  district  property  to  the  park 
district,  there  are  all  kinds  of  protections  for  drinking  water 

I  found  that  very  interesting  because  I  live  right  by  Lake 
Chabot,  and  I  know  that  it  has  not  been  used  for  drinking  water 
since  1977.   It's  not  connected  to  a  filter  plant.   So  it  is 
basically  an  emergency  supply  of  water,  but  it  is  still 
considered  drinking  water,  so  the  very  intense  recreation 
activities  out  there  do  not  include  any  body  contact  sports. 

The  other  thing  about  recreation  in  the  Lake  Chabot  area 
that  is  interesting  is  that  Lake  Chabot  is  a  very  old  reservoir. 
It  was  built  in  the  1870s  by  Anthony  Chabot  as  part  of  the 
original  water  supply  development  for  the  East  Bay  area.   It's  on 
San  Leandro  Creek.   Upstream  of  San  Leandro  Creek,  the  utility 
district  has  built  Upper  San  Leandro  Reservoir.   In  between  the 
two,  along  the  course  of  the  creek,  there's  a  golf  course  called 
Willow  Park,  which  is  leased  to  the  golf  course  operator  by  the 
park  district.   It's  kind  of  a  sublease  under  the  lease  from  the 
utility  district. 

When  the  utility  district  has  to  release  water  from  the 
upstream  reservoir  because  of  flood  concerns,  either  due  to  local 
runoff  or  the  water  being  brought  in  from  Pardee,  it  doesn't  take 
very  much  flow  from  Upper  San  Leandro  before  it  has  a  significant 
impact  on  the  golf  course;  it  is  a  long,  narrow  golf  course  that 
snakes  along  the  creek,  and  there's  this  ditch  down  through  it. 
When  the  flow  of  water  gets  to  about  120  cubic  feet  per  second  or 
greater,  there  can  be  problems  at  the  golf  course. 

That  spawned  a  great  deal  of  litigation  over  the  years  by 
the  golf  course  operator,  who  had  signed  lease  documents  which 
made  him  subject  to  that  flooding  operation.   He  had  to  take  it, 
unfortunately  for  him,  but  that's  the  way  his  enterprise  was 
created,  and  he  knew  it.   That's  the  document  he  signed,  and  the 


courts  eventually  validated  all  that.  Extensive  litigation, 
primarily  handled  by  Bob  Helwick. 

So  that  recreation  activity  is  one  that ' s  plopped  right  down 
there  between  those  utility  district  reservoirs  and  has  to 
function  in  a  manner  that  is  consistent  with  the  operation  of  the 
reservoirs.  When  the  reservoirs  are  operated  in  a  way  that  is 
inconsistent  with  recreation,  the  golf  course  gets  flooded.   That 
sounds  pretty  tough,  but  I'm  afraid  that's  the  way  that  it  works. 
If  the  golf  course  operator  does  what  it  is  supposed  to  do  to 
keep  the  ditch  channel  clean,  the  damage  can  be  controlled,  but 
probably  not  eliminated. 

Recreation  is  an  important  part  of  the  utility  district's 
mission,  but  it  is  always  secondary  to  drinking  water  supply. 
Drinking  water  supply  has  to  come  first.  Recreation  in  an  area 
that  is  as  densely  populated  as  the  utility  district  service 
area—it's  really  difficult  to  not  have  a  recreational  presence 
when  you  have  these  magnificent  watershed  lands  and  these 
gorgeous  lakes.   The  key  is  to  be  able  to  manage  it. 

I  think  to  the  utility  district's  credit,  it  has  had  very 
capable  people  managing  those  watershed  activities,  certainly  for 
as  long  as  I  know,  and  there  is  a  strong  commitment  to  management 
in  a  way  which  will  protect  the  water  supply  and  yet  provide  the 
maximum  public  access  and  recreational  opportunity  that  is 
consistent  with  that  watershed  water  supply  protection.   I  think 
they  do  a  heck  of  a  job. 

Other  Watersheds  and  Mountain  Biking 

Maddow:   I  think  it  will  be  interesting  to  watch  over  the  next  couple  of 
years  as  the  San  Francisco  watersheds  in  particular,  on  the 
Peninsula,  are  coming  under  enormous  political  and  public 
pressure  to  open  up  in  the  same  way  that  East  Bay  has  opened  up, 
They  don't  want  to  do  it,  I  don't  think. 


LaBerge:   No. 

Maddow:   From  everything  I've  read.  But  they're  eventually  probably  going 
to  find  themselves  having  to  do  so,  and  I  think  that  they  will 
probably  try  to  model  what  East  Bay  has  done  with  its  program. 

East  Bay  has  not  had  one  element  of  watershed  recreation 
that  some  other  agencies  have  had  that  could  be  very  troublesome, 
and  that's  the  constant  battle  with  people  who  want  to  build 
mountain  bike  trails.  Mountain  bikes  and  motorcycles  can  produce 
erosion  that's  a  terrible  problem  in  drinking  water  reservoirs. 

LaBerge:   Like  Mount  Tarn  [Tamalpais] ? 

Maddow:   Yes.   Mount  Tarn.   All  those  battles  over  there  with  mountain 

biking  on  Mount  Tarn  pretty  much  have  to  do  with  the  watershed  of 
the  Marin  Municipal  Water  District.   They  have  had  to  learn  to 
cope  with  a  difficult  problem  there.   Watershed  managers  will 
tell  you  that,  given  their  preference,  they  would  not  have  either 
mountain  bikes  or  any  kind  of  motorcycles  in  their  watershed. 
Over  there  I'm  told  they  don't  have  motorcycles;  they  just  have 
mountain  bikes.  But  they  do  have  problems  with  it,  and  it's  a 
difficult  management  problem.  My  hat  is  off  to  the  Marin 
Municipal  Water  District  because  they  do  a  good  job  managing  that 
frequently  controversial  issue.  East  Bay  has  not  had  to  face 
that  so  much,  at  least  to  my  knowledge.   The  Contra  Costa  Water 
District  is  now  having  to  cope  with  it  a  little  bit  as  it  plans 
recreation  for  its  new  Los  Vaqueros  Reservoir,  so  that's  an 
interesting  little  sidelight  on  recreation. 


Maddow:   Grazing  is  another  issue.   Grazing  is  an  important  element  in 

range  land  control  and  vegetation  control  and  avoidance  of  fire. 
Fire  can  be  a  terrible  thing  in  a  watershed,  for  a  water  supply, 
for  a  drinking  water  supply.  The  aftermath  of  a  fire  is  always 


increased  erosion.   So  well-managed  grazing  can  be  important  as  a 
watershed  management  tool  because  it  can  serve  as  a  buffer  to 
fire.  There  are  some  significant  problems  with  it,  which  we  are 
learning  a  great  deal  more  about  now  as  water  managers  are  trying 
to  cope  with  the  relatively  newly  discovered  problem  in  water 
supply.   It's  something  called  cryptosporidium.   It's  a  little 
cyst.  Actually,  it's  called  an  oocyst,  one  word. 

If  it  gets  into  a  water  supply,  it  can  be  deadly.   Something 
like  110  people  in  Milwaukee  died  in  a  crypto  outbreak  a  few 
years  ago,  and  400,000  got  sick.  Las  Vegas  also  had  an  outbreak 
and  several  deaths.   It  is  now  the  most  active  regulatory  area  in 
the  drinking  water  field.   Crypto  gets  into  drinking  water 
through  the  feces  of  animals,  and  cattle  in  particular.   Most 
particularly  waste  from  calves,  and  therefore  in  grazing 
management  it  is  important  to  keep  the  cattle  away  from  the  water 
and  away  from  the  water  courses  which  can  have  direct  access  to 
the  drinking  water  reservoir. 

That's  a  tough  management  problem.  Yet  East  Bay,  again,  has 
done,  as  I  understand  it,  a  pretty  darn  good  job  of  managing  for 
it.  Crypto  is  a  real  tough  issue  and  not  an  easy  one  to  manage 
for.   Giardia  is  another  one.   Giardia  has  been  known  a  little 
longer.   The  cyst  is  bigger.   It's  not  very  big,  but  it's  bigger. 
Up  until  the  seventies ,  I  never  heard  of  giardia  in  all  my  years 
of  camping  and  hiking  and  all  that.   It  used  to  be  you  drank  out 
of  streams  in  the  Sierra.  You  don't  do  that  any  more,  do  you? 
It's  because  of  giardia.  And  it's  largely  because  deer  and 
raccoons  carry  them,  and  they're  everywhere  now. 

So  anyway,  that's  an  element  of  recreation  and  watershed 
management  that  relates  directly  to  the  quality  of  the  water  that 
we  serve,  and  we'll  be  hearing  a  great  deal  more  about  regulation 
and  treatment  techniques  to  deal  with  those  things  and  other 
biological  contaminants  over  the  next  few  years. 


Camanche  Reservoir 

LaBerge:  When  you  were  at  the  East  Bay,  what  part  did  you  have  to  play  in 
any  of  this? 

Maddow:   In  drinking  water  quality  and  in  recreation? 

LaBerge:   In  recreation.   Were  you  litigating?  Besides  the  golf  course. 

Maddow:   The  golf  course  litigation  was  one  little  sidelight.  One  of  the 
areas  we  dealt  with  most  was  actually  recreation  at  the 
district's  Camanche  Reservoir,  which  is  not  a  drinking  water 
reservoir.   Camanche  was  the  reservoir  that  was  built  in  the  big 
building  program  of  the  late  fifties  and  early  sixties,  which 
allowed  the  utility  district  to  expand  its  supply  from  200 
million  gallons  a  day  to  325  million  gallons  a  day. 

The  idea  is  that  Camanche,  which  is  downstream  of  Pardee,  is 
the  reservoir  in  which  the  utility  district  can  store  water  that 
belongs  to  people  who  have  senior  water  rights ,  who  are 
downstream  of  Camanche.   And  by  having  Camanche  to  store  the 
water  for  those  senior  rights  holders ,  the  utility  district  can 
store  more  water  in  Pardee  for  use  as  drinking  water. 

When  Camanche  was  built,  the  local  counties,  Amador, 
Calaveras,  and  San  Joaquin,  thought  that  it  would  be  a  wonderful 
recreation  opportunity.   And  so  the  utility  district  agreed 
finally  to  the  formation  of  what  was  called  the  Tri-County  Park 
Board  to  actually  manage  recreation  there.   The  park  board  leased 
the  property  from  the  utility  district,  and  then  it  entered  into 
concession  agreements  for  the  development  and  operation  of 
recreation  at  the  north  and  south  side  of  Camanche. 

It  lasted  for  quite  a  while,  and  it  was  a  failure.   For  a 
variety  of  reasons,  largely  thought  by  East  Bay  people  to  have 
been  related  either  to  undercapitalization  or  inadequate 
management  capabilities  on  the  part  of  the  concessionaires.   It 
was  always  sort  of  an  extra  responsibility  of  the  counties.   No 


one  really  ran  it.  The  utility  district  had  to  work  through  the 
pack  board  and  the  counties  to  try  and  keep  a  level  of  management 

Eventually,  the  utility  district  had  to  go  in  and,  with  the 
cooperation  and  agreement  of  the  counties,  put  the  park  board  out 
of  its  misery  and  buy  out  those  concessionaires  and  then  go  in 
and  kind  of  straighten  things  out.  Up  through  '93  I  had  a  very 
large  hand  in  all  of  that.  Fortunately,  none  of  it  litigation. 
A  lot  of  administrative  work. 

One  of  the  triggering  events'  to  putting  the  park  board  out 
of  its  misery  and  the  utility  district  buying  out  the 
concessionaires  was  that  in  1979  through  '81,  the  utility 
district  decided  that  it  would  try  and  increase  its  power 
production.   This  was  at  a  time  when  federal  law  had  changed  and 
made  hydroelectric  power  at  a  facility  like  Pardee  or  Camanche 
much  more  valuable.  And  so  a  determination  was  made  that  a  new 
power  plant  would  be  built  at  Camanche,  and  a  third  unit  would  be 
added  to  the  two  units  of  the  existing  Pardee  power  plant. 

To  do  so,  a  license  was  required  from  the  Federal  Energy 
Regulatory  Commission.  The  utility  district  had  actually  had  a 
license,  way  back  in  the  very  early  days  of  the  predecessor,  the 
Federal  Power  Commission.   It  was  license  number  567.   And  some 
very  wise  people  at  the  utility  district  at  some  point  were  able 
to  convince  the  Congress  of  the  United  States  to  pass  a  law  that 
in  essence  cancelled  that  license  and  said  the  utility  district 
was  not  going  to  be  a  federal  power  licensee  for  that  Pardee 
power  plant. 

Well,  in  the  late  seventies  and  early  eighties,  the  rush  to 
build  hydroelectric  power  brought  back  the  federal  grips .   The 
utility  district  applied  for  a  license  for  a  new  power  project,  a 
new  plant  at  Camanche,  and  for  the  third  unit  at  Pardee.   The 
project  license  area,  as  defined  in  the  maps  that  had  to  be 
included  with  the  application,  included  the  whole  recreation 


And  so,  to  make  a  very  long  story  short,  a  few  years  later, 
a  young  woman  who  worked  for  the  staff  of  the  commission  in  San 
Francisco  was  out  on  one  of  their  annual  licensee  inspections, 
and  she  concluded  that  the  two  recreation  areas  in  Camanche  were 
absolutely  awful,  and  she  was  absolutely  right.   It  was  that 
event,  the  federal  regulatory  agency  coming  in  and  saying,  "Oh, 
my  goodness,"  that  kind  of  got  the  utility  district  galvanized  to 
do  something  about  recreation  activity  there. 

I  don't  know  exactly  what  the  status  of  it  is  now,  but  I 
believe  the  utility  district  went  in,  spent  a  fair  amount  of 
money,  cleaned  up  the  recreation  areas.   I  imagine  that  there  are 
new  licensees  or  concessionaires  in  there,  operating  the 
recreation  activity,  and  I  would  suspect  it  is  far  improved  over 
what  it  was. 

Contract  with  Park  District  for  Peace  Officers 

Maddow:   That  was  a  major  activity  that  we  were  involved  in  in  the  legal 

department  for  quite  some  time.   Other  recreation  area  activities 
that  we  got  involved  in  included  the  time  when  the  utility 
district  decided  it  wanted  to  create  a  police  force.   We  wrote 
the  legislation  and  helped  to  do  the  groundwork  that  led  to  the 
establishment  and  operation  of  the  utility  district  police  force. 
It  was  something  that  none  of  us  in  the  legal  department  thought 
was  a  good  idea,  I'm  happy  to  say,  because  the  utility  district 
eventually  agreed  with  us  and  did  away  with  it. 

LaBerge:   For  just  the  recreation  areas? 

Maddow:   For  the  recreation  areas.   The  motivation  was  right,  but  somehow 
the  whole  idea  of  the  utility  district  having  peace  officers  to 
manage — having  those  people  be  a  part  of  the  watershed  recreation 
activity  was  never  a  good  fit.  And  so  the  utility  district 
transferred  much  of  that  responsibility  and  some  of  those  people 
— transferred  is  the  wrong  word—to  the  park  district.   Then  the 


utility  district  contracted  with  the  park  district,  which  had  an 
existing  police  force,  and  the  park  district  does  much  of  that 
work  for  the  utility  district  now.  They  were  in  many  respects 
better  equipped  for  it. 

But  the  legal  department--!  had  a  role  in  that.  Fortunately, 
no  litigation,  except  an  occasional  lawsuit  to  defend.  We  never 
had,  like,  police  brutality  or  something,  but  we  did  have 
occasional  minor  tort  claim  activity  that  related  to  people  with 
various  complaints  about  the  police  force,  but  that  was  a  very 
minor  level  of  activity. 

There  were  occasionally  recreation  area  activities  that  did 
result  in  damage  cases  and  that  sort  of  thing.   We  did  have  one 
large  wrongful  death  claim  involving  a  man  who  fell  from  a 
bicycle  in  one  of  the  recreation  areas.  But  no  big  cosmic  cases 
or  major  issues  that  I  can  recall.  More  administrative 
activities  that  could  keep  you  quite  busy.  Rates  and  charges 
issues  exist  over  there.  How  one  goes  about  setting  up  permit 
systems  and  controlling  a  variety  of  access  activities.   A  fair 
amount  of  interaction  with  the  local  land-use  planning 
jurisdictions,  in  particular  with  regard  to  such  things  as  road 
access  and  things  like  that. 

Pump-back  Scheme  for  Camanche.  1988 

LaBerge:   You  wanted  to  talk  about  the  [1988]  pump-back  scheme  at  Camanche. 

Maddow:    I  will.   It's  a  water  rights  matter,  and  I  think  it's  a 

fascinating  one  from  a  number  of  perspectives.   This  was  during 
the  drought  of  the  late  eighties.  The  utility  district  was 
facing  the  prospects  of  declining  available  supply  and  rationing, 
et  cetera,  down  in  the  service  area,  and  so  a  variety  of 
alternatives  was  investigated  for  how  to  supplement  the 
district's  water  supply.   In  the  drought  of  the  seventies,  the 


supplement  was  something  we  talked  about  before,  where  the 
district  pumped  water  out  of  the  Middle  River. 

In  the  eighties,  an  effort  was  made  to  take  a  different 
approach  to  that.  The  theory  was  that  the  quality  of  water  needed 
for  the  uses  downstream  of  Camanche  was  probably  significantly 
less  than  drinking  water  quality;  perhaps,  in  the  emergency 
circumstance  that  the  district  was  in,  one  way  to  do  it  might  be 
to  pump  water  out  of  the  Delta,  water  that  the  district  would  get 
a  right  to  by  virtue  of  making  special  arrangements  with  the 
bureau  to  use  some  American  River  water  that  would  be  released 
from  Folsom,  run  down  the  American,  down  the  Sacramento,  into  the 
Delta.  The  district  would  pick  it  up  someplace  and  then  figure 
out  a  way  to  get  it  into  Camanche. 

The  idea  was  one  that  at  the  beginning,  when  everyone  was 
enthusiastic  about  it,  was  a  high-level  management  decision  and 
plan  and  all  this.   Then,  later  on,  when  it  began  to  run  into 
some  rough  spots,  it  became  known  as  the  Stein  Plan,  after  Dick 
Stein,  who  was  a  hydrographer  down  there,  who  really  took  this 
idea  and  showed  how  it  could  be  made  to  work  from  a  hydrographic 
and  hydrologic  standpoint.  As  I  say,  later  on  it  became  Stein's 
idea,  when  it  looked  like  it  was  going  to  have  trouble 
[chuckling]  with  regulatory  agencies.  Dick  is  a  good  friend,  and 
I  know  he'll  laugh  when  he  hears  that  I've  said  that.   It's  not 
meant  in  a  critical  way  at  all.  It's  just  kind  of  the  way  things 
work  in  bureaucracies.   Success  has  many  parents. 

Anyway,  the  idea  was  that  the  utility  district  would  build  a 
pump  station  which  would  pump  water  into  one  of  the  aqueducts . 
The  water  would  be  pumped  backwards .   The  aqueducts  run  from  east 
to  west.  We  said  you  could  pick  up  Delta  water  and  run  it 
backwards  and  dump  it  into  Camanche  Reservoir,  where  it  could  be 
used  to  satisfy  the  downstream  needs,  thereby  preserving  more  of 
the  Pardee  water  for  drinking  water  purposes. 

In  order  to  do  so,  we  needed  to  file  a  petition  with  the 
State  Water  Resources  Control  Board  that  would  allow  us  to  change 
points  of  diversion  and  methods  of  diversion  and  purposes  of  use 


and  places  of  use  and  that  sort  of  thing  for  some  of  the  water 
under  a  variety  of  rights.  To  make  a  long  story  short,  it 
resulted  in  a  fairly  lengthy  water  rights  hearing.  Bob  Helwtck 
really  carried  the  load.  He  is  a  very  good  water  rights  lawyer. 
I  had  a  bit  of  a  role  in  it,  but  Bob  did  the  majority  of  the 
work.   I  think  I  perhaps  made  an  opening  statement  or  maybe  a 
closing  statement.   Bob  did  all  the  work. 

We  were  opposed  in  that  hearing  by  San  Joaquin  County  and 
by  the  city  of  Lodi.  The  city  of  Lodi  has  a  groundwater  system 
for  its  drinking  water  supply.  Of  course,  they're  right  on  the 
Mokelumne,  and  they  have  this  old,  old  right,  as  against  East 
Bay,  which  they're  very  careful  to  guard.  There  are 
circumstances  under  which  East  Bay  might  have  to  supply  water  to 
the  city  of  Lodi  if  in  fact  it's  determined  that  the  operations 
of  the  district's  facilities  have  resulted  in  a  decline  in  the 
groundwater  that's  available  to  the  city.   So  drinking  water 
quality  and  quantity  issues  are  very  important  to  that  city. 

In  any  event,  the  upshot  of  the  lengthy  hearing  was  that  the 
State  Water  Resources  Control  Board  could  only  permit  the  utility 
district  to  go  forward  with  what  it  was  proposing  if  it  could 
find  that  the  changes  the  district  was.  seeking  to  make  in  water 
rights  and  their  operation  would  be  without  injury  to  any  other 
lawful  user  of  water.  The  board  eventually  found  that  there 
would  be  a  very  slight  increase  in  the  trihalomethane ,  the  THMFP, 
for  the  water  drawn  from  Lodi's  wells. 

Now,  with  THMs,  the  regulatory  standard  that  is  the  critical 
standard  is  one  hundred  parts  per  billion,  and  the  water  district 
was  producing  water—in  those  days  it  was  probably  around  seventy 
parts  per  billion.   Maybe  fifty  to  seventy,  something  like  that. 
Lodi's  groundwater  was  at  something  like  one  or  two  parts  per 
billion,  and  the  evidence  was  that,  at  worst,  the  operation  that 
the  utility  district  was  proposing  with  the  pump-back  of  Delta 
water,  would  have  raised  their  THM  level  from  two  to  six,  as  I 
recall.   And  the  board  found  that  that  was  a  sufficient  injury  so 
that  it  had  to  disallow  the  permit  that  the  utility  district  had 


I  understand  that.   "Without  injury"  is  the  applicable  legal 
standard.   I  think  that  under  the  circumstances  the  board  had  a 
number  of  other  options.   It  did  not  have  to  apply  that  standard 
as  literally  as  it  did.  What's  interesting  today  is  that  there 
are  legislative  proposals  around  to  free  up  the  transfer  of  water 
between  water  rights  holders  or  between  basins  or  what  have  you. 
And  there  has  been  quite  an  extensive  effort  to  write  a  model 
water  transfer  package.  A  professor  named  Brian  Gray  from  over 
at  Hastings  Law  School  has  been  the  principal  author,  and  it's 
being  sponsored  by  the  Bank  of  America  and  the  [California] 
Business  Roundtable  and  the  Farm  Bureau  and  people  like  that. 
It's  quite  a  good  piece  of  work. 

One  of  the  things  that  it  would  do  would  be  to  change  that 
legal  standard  from  "without  injury"  to  "without  significant 
injury."  I  think  that  if  that  legislation  or  something  like  it 
should  be  enacted,  and  if  the  Stein  Plan  were  proposed  again,  the 
utility  district  could  probably  get  it  permitted  and  could 
probably  use  something  like  that  pump-back  scheme  in  an  effort  to 
stretch  its  available  water  supplies  during  a  drought  period. 

I  don't  know  whether  that's  the  plan  the  utility  district 
would  hit  on  in  a  repeat  of  '88,  but  that  is  the  one  it  tried 
back  then.  It  was  a  good  hearing  because  all  parties  were  very 
well  represented.   It  was  the  first  time  we  had  to  deal  at  great 
length  with  the  Committee  to  Save  the  Mokelumne,  which  is  an 
organization  that  grew  up  up  in  Lodi,  around  a  man  named  Bill 
Jennings  and  his  lawyer,  Mike  Jackson.  And  that  organization  has 
been  after  the  utility  district  ever  since.   They're  the  ones  who 
really  took  the  utility  district  on  over  the  Penn  Mine  in  more 
recent  years.   But  that's  where  we  first  really  encountered  them 
in  a  significant  way. 

But  the  case  was  well  litigated.   It  was  a  fun  hearing  in 
the  sense  that  we  didn't  have  a  lot  of  extraneous  stuff.  You 
really  got  to  focus  on  the  issues,  and  it  was  being  done  in  a 
very  professional  way.   I  think  all  the  people  who  were  in  it 
came  out  of  it  feeling  as  though  they  had  given  it  their  level 
best  shot.   We  were  disappointed  because  we  didn't  prevail,  but 


we  gave  it  a  great  shot,  and  we  did  a  lot  of  scientific  work  that 
I  think  the  utility  district  can  still  use  as  it  thinks  about  its 
various  and  sundry  options  with  how  to  supplement  its  water 
supply  in  the  long  term,  in  the  future. 

Scientific  Background  from  EBMUD  Experts 

LaBerge:  That's  a  question  I  have  for  you:  where  did  you  pick  up  all  the 
science  you  had  to  know  for  this? 

Maddow:   By  hanging  around  with  these  engineers.  The  only  way  you  can 

learn  it  is  by  a  kind  of  osmosis,  if  you  haven't  studied  it.   If 
I  had  been  a  civil  engineer  by  education  or  hydrology  or 
hydrography  student  or  something  like  that,  it  would  have  been 
great.   But  basically  I  just  worked  with  these  people  and 
listened  to  them  and  did  an  enormous  amount  of  reading.   And  I 
was  fortunate  in  that  the  utility  district's  technical  staff  is  a 
very  good  staff.   They  are  not  only  people  who  know  this  stuff, 
but  they  know  how  to  explain  it,  including  to  people  like  me,  to 
whom  it  sometimes  doesn't  come  so  quickly. 

After  a  while,  when  you  work  with  people  like  Jon  Myers  and 
Kip  Spragens  and  Dick  Stein--!  mean,  those  people  are  just-- 
they're  really  good.   And  Orrin  Harder  and  Jack  Reilley.   You 
know,  people  from  the  earlier  periods.   One  of  the  things  that  I 
always  liked  about  working  with  the  utility  district's 
professional  staff  was  that  we  could  always  count  on  them  to 
spend  the  time  necessary  to  make  sure  the  lawyers  knew  what  these 
people  were  talking  about.  Even  if  all  the  lawyers  were  doing 
would  be  to  sort  of  proverbially  open  the  door  so  we  can  shove 
the  expert  through.   Sometimes  they  knew  that  we  were  going  to 
have  to  get  into  the  dialogue,  and  so  we  were  always  able  to  work 
in  a  very  cooperative  spirit  and  in  a  friendly  spirit.   But  most 
importantly,  it  was  on  a  very  high  professional  plane.   That's 
part  of  why  East  Bay  MUD  has  been  as  well  recognized  a  utility  as 


it  has  been  for  so  long.   It's  high-quality  people  who  work  on  a 
very  high  professional  level. 

If  you  go  around  the  state  in  particular,  but  the  country, 
you  could  find  lots  and  lots  of  people  who  did  at  least  part  of 
their  training  at  East  Bay  MUD,  who  really  learned  what  it  meant 
to  take  their  professional  knowledge  and  their  wisdom  and  apply 
it  in  a  very  professional  way.  That's  the  part  that  I  think  is 
different  in  East  Bay  MUD.   It's  that  gloss  of  professionalism 
that  is  a  part  of  the  ethic  of  the  organization.  And  that's  what 
kind  of  sets  it  apart,  I  think.  And  it  has  for  a  very  long  time. 

Value  of  Historical  Records  in  Water  Rights  Issues 

LaBerge:   In  fact,  Jon  Myers  is  really  interested  in  the  oral  histories 
because  of  water  rights  issues. 

Maddow:   Jon  Myers  understands  something  that  not  very  many  people  at  the 
utility  district  have  understood  over  the  years .  Many  are 
interested;  not  many  have  understood  it  as  well  as  Jon.   Your 
water  rights  are  only  as  good  as  your  understanding  of  your 
records.  A  water  right  is  called  a  usufructary  right.  You 
either  use  it,  or  you  lose  it.   It  is  only  as  good  as  you  make 
use  of  it.  And  the  only  way  you  can  demonstrate  your  use  of  it 
is  through  those  records .  And  so  Jon  and  I  have  had  many 
conversations  over  the  years  about  the  significance  of 
maintaining  good  hydrologic  records.   Nobody  has  anything  like 
the  store  of  records  the  utility  district  has  for  the  Mokelunme 

There  are  other  rivers,  both  larger  and  smaller  than  the 
Mokelunme,  where  somebody  called  the  water  master  has  been  given 
the  responsibility  of  keeping  all  the  records.   Few  water  masters 
have  records  that  are  as  encyclopedic  as  the  utility  district's 
have  been.   Sometimes  Jon  gets  angry  at  the  fact  that  in  more 
recent  years,  in  the  last  twenty  years,  the  utility  district  has 


backed  off  on  some  of  its  record-keeping  functions  .   It  used  to 
have  hydrographers  who-- 

Maddow:   The  hydrographers  in  Lodi  kept  records  on  the  crop  use  and  the 
other  water  use  details  by  farmers  who  have  rights  that  are 
senior  to  the  utility  district.  That's  very  important  because 
the  utility  district  has  an  obligation  to  get  water  to  those 
people,  and  it  has  an  obligation  to  get  water  to  —  the  losses,  as 
the  water  moves  down  the  river,  come  out  of  the  utility 
district's  hide.   So  as  their  uses  change,  in  particular  as  they 
diminish,  the  utility  district  needs  to  know  about  that  so  that 
it  can  make  sure  it  is  sending  the  right  amount  of  water  down  the 
river,  not  a  drop  too  much,  if  it  can  help  it. 

And  that's  why  Jon  is  so  hot  on  the  records  and  all  of  that 
and  the  understanding  of  how  those  water  rights  came  to  be  and 
their  care  and  feeding  .   He  '  s  a  real  master  at  that  .   When  the 
utility  district  stole  him  away  from  the  railroad  industry,  it 
did  a  good  thing. 

Kip  Spragens  isn't  quite  as  visible  in  a  lot  of  these  things 
as  Jon,  but  if  anything,  in  some  respects  Kip's  knowledge  is 
deeper  than  Jon's,  and  that's  not  a  slight  to  Jon;  it's  just 
praise  of  Kip.   They  have  another  young  person  there,  Lena  Tarn,  a 
young  woman  who  has  been  there  a  few  years  now.  Lena  has  not 
their  encyclopedic  knowledge  of  it,  but  she  is  an  absolute  master 
at  taking  everything  they've  got  and  computerizing  it  and  being 
able  to  manipulate  it  through  the  computer.   Those  talents  are 
absolutely  critical  to  somebody  who  has  surface  water  rights  of 
the  type  that  the  utility  district  has.   And  that  staff  is  first- 
rate;  there  are  a  number  of  others  as  well. 


The  Penn  Mine 

[Interview  6:  June  18,  1997]  it 

Maddow:   The  Penn  Mine  is  a  fascinating  subject,  and  there  are  a  couple  of 
things  I'll  need  to  read  to  really  be  sure  that  I  am  up  on  it. 
But  Just  in  a  nutshell,  let  me  say  that  it's  a  great  example  of 
how  doing  the  right  thing  can  sometimes  come  back  to  haunt  you. 
Because  the  utility  district  and  the  Regional  Water  Quality 
Control  Board  for  the  Central  Valley  tried  very  hard  to  clean  up 
somebody  else's  mess.  Or,  better  yet,  to  take  steps  to  make  sure 
that  a  mess  left  by  somebody  else  didn't  foul  up  the  waters  of 
the  state. 

In  so  doing,  they  took  some  actions  that  subsequently  have 
been  found  by  the  courts  to  have  been  improper  or  illegal,  and  as 
a  result  they  are  now  having  to  go  in  and  spend  vast  sums  of 
money  to  clean  up  this  mess  that  somebody  else  left.   And  it's 
unfortunate,  but  it  sometimes  happens  that  way.   I  just  think 
it's  unfortunate  that  the  utility  district  ran  into  it.  A  lot  of 
litigation.  Bitterly  litigated.   Some  results  that  sometimes 
struck  me  as  being  a  little  bit  stretched,  but  we'll  talk  about 
it  more  in  detail  later. 

LaBerge:   Okay. 

Historical  Background 

LaBerge:   Okay.   When  we  ended  the  last  time,  we  decided  we  would  just 
check  off  some  of  these  last  issues.   One  was  Penn  Mine.   Why 
don't  you  tell  me  about  that? 

Maddow:   It's  a  tremendous  story  that  I'm  going  to  tell  you  in  the 

thumbnail  version.   On  the  south  bank  of  the  Mokelumne,  between 
Pardee  and  Camanche,  there  is  an  old  mine  commonly  known  as  the 


Perm  or  the  New  Penn  Mine.   It  was  a  source  of  minerals  that  were 
used  in  the  munitions  industry  in  every  war  from  the  Civil  War 
through  the  Korean  War,  and  it  would  have  been  used  in  the 
Vietnam  War  except  for  the  fact  that  by  that  time  the  water 
quality  laws  of  the  state  had  started  to  come  into  effect. 

When  the  utility  district  purchased  property  for  Camanche 
Reservoir,  it  ended  up  having  to  acquire  some  property  which  had 
previously  belonged  to  the  Penn  Mine,  portions  of  the  mine 
property  closer  to  the  river. 

Court  Finds  No  Responsibility  on  Part  of  War  Department 

LaBerge:  Penn  Mine  belonged  to  the  government? 

Maddow:   No.   Penn  Mine  belonged  to  a  private  company.   There  is  a 

government  tie  because  in  World  War  II  the  mine  had  been  shut 
down.   It  had  been  shut  down  after  World  War  I,  some  time  after 
World  War  I.  But  it  was  reopened  in  World  War  II  and  was  in  fact 
operated  by  a  company  that  I  believe  was  called  Eagle  Shawmut. 
They  got  started  as  a  result  of  a  loan  from  the  War  Department. 
In  fact,  the  War  Department  was  the  operator  of  the  mine  through 
Eagle  Shawmut  for  a  period  of  time  during  the  war.   And  something 
on  the  order  of  10,000  tons,  I  think,  of  zinc  concentrate,  or 
something  like  that,  came  out  of  the  mine  for  the  munitions 

To  skip  ahead  a  little  bit,  much,  much  later,  in  the  late 
eighties  and  into  the  nineties,  the  utility  district  sought  to 
establish  that  some  of  the  contamination  of  the  site  and  of  the 
Mokelumne  was  as  a  result  of  the  government's  ownership  and 
operation,  or  at  least  having  a  stake  in  the  ownership  and 
operation  of  the  mine,  and  that  therefore  the  federal  government 
ought  to  participate  in  the  cleanup. 


That  led  to  some  very  significant  litigation,  in  which  the 
utility  district  was  unsuccessful,  as  I  understand  it.  That  has 
been  concluded  since  I  left.  But  the  theory  was  that  under 
modern  pollution  prevention  and  contamination  law,  CERCLA 
[Comprehensive  Environmental  Response,  Compensation  and  Liability 
Act]  being  the  principal  law,  I  think,  those  who  were  responsible 
for  the  pollution  are  forever  responsible. 

So  the  utility  district  took  the  position  that  the  old  War 
Department's  financial  arm  that  got  the  mine  up  and  running  there 
in  World  War  II--it  was  an  owner-operator;  it  had  an  owner- 
operator  relationship.   There  was  a  case  coming  out  of,  I  think, 
North  Carolina  where  this  same  government  entity  had  funded  the 
construction  of  a  mill  to  produce,  as  I  recall,  cord  that  was 
used  in  parachutes  or  some  such  thing  in  World  War  II. 
Eventually,  in  that  case,  a  federal  court  determined  that  the 
United  States  was  the  owner-operator  of  the  facility  and 
therefore  had  continuing  responsibility. 

In  the  Penn  Mine  case,  the  federal  court  reached  a  different 
conclusion,  which  means  that  the  old  War  Department  interests 
will  not  result  in  the  United  States  having  to  pay  a  cost  of  that 
cleanup.   That  manifested  itself  in  a  piece  of  litigation  that  I 
think  was  called  East  Bay  MUD  v.  Department  of  Commerce,  because 
the  United  States  Department  of  Commerce  was  ultimately  the  part 
of  the  U.S.  Government  that  succeeded  to  the  interests  of 
whatever  that  War  Department  entity  was  that  had  financed  it. 

Anyway,  the  mine  was  in  private  ownership.  Pretty  busy 
place,  whenever  there  was  a  war  on  or  people  thought  there  was 
gold.   Huge  mine.   I  mean,  there  are  something  like  thirteen 
miles  of  shafts  and  adits  under  the  mine.   Essentially,  when  it 
shut  down  for  the  last  time,  it  was  abandoned,  and  what  was  left 
was  a  series  of  slag  piles  and  tailings  and  open  adits  and 
mineral-laden  material,  and  a  horrible  potential  water-quality 

I  think  it  was  in  the  forties,  when  the  mine  was  in 
operation,  that  there  was  some  kind  of  a  smelting  operation  on 


the  north  bank  of  the  river.  They  had  a  wooden  flume  that  ran 
across  the  river  and  carried  material  from  the  mine  or  perhaps 
wastes  from  the  mine.   I'm  not  really  sure.  There's  a  story  that 
I  never  really  tracked  down,  and  it  was  to  the  effect  that  the 
flume  broke,  and  as  a  result,  some  of  the  mine  material  or  waste 
actually  got  into  the  river;  as  an  old  time  East  Bay  MUD  person 
recorded  at  one  point,  in  a  note  that  I  saw  someplace,  when  the 
waste  spilled,  it  killed  all  the  fish  from  the  mine  to  the  Delta. 
So  the  potential  water  quality  issues  related  to  the  heavy  metals 
in  this  mine  were  pretty  serious. 

EBMUD  Acquires  Land  for  Camanche  Reservoir 

Maddow:   When  the  utility  district  went  up  to  buy  the  property  for 

Camanche,  the  ultimate  decision  was  to  build  Camanche  as  we  now 
know  it,  of  about  430,000  acre-feet  of  storage  capacity. 
Alternatives  which  were  eliminated  included  a  smaller  Camanche 
plus  one  or  two  smaller  dams  upstream  from  Pardee.   When  full, 
Camanche  would  inundate  a  portion  of  the  old  Penn  Mine  property. 
That's  what  the  utility  district  had  to  buy—that  portion  which 
would  have  been  inundated.   It  included,  as  I  recall,  the  strip 
of  land  along  the  river.   I  want  to  say  180  acres,  some  number 
like  that.  It  included  some  of  the  old  slag  heaps  where 
materials  that  came  out  of  the  smelter  that  looked  like  giant 
black  bathtubs  of  crystallized  material—there  was  a  huge  pile  of 
that.  And  then  there  were  tailings  and  things  like  that.   And 
there  was  an  old  mill,  and  there  was  some  other  building. 

But  the  utility  district  did  not  acquire  the  evaporation 
ponds,  which  were  the  areas  where  there  was  thought  to  be  perhaps 
the  most  serious  of  the  potential  contamination  problems,  as  I 
recall.   In  the  1970s,  during  the  drought,  Camanche,  of  course, 
was  way  down,  and  there  was  some  incident  involving  heavy  metals 
and  problems  with  regard  to  fish  in  the  river  downstream  from 
Camanche.   It  was  in  the  river,  not  in  the  reservoir.   There  was 
a  concern  that,  at  the  conclusion  of  the  drought,  particularly  if 


you  got  a  real  wet  period  of  time,  water  flowing  from  above  the 
mine,  across  the  mine  property,  down  through  two  creeks  that 
crossed  it,  would  reach  the  Mokelumne,  reach  Camanche,  and  erode 
down  into  those  sediments  and  those  waste  piles  and  could  cause  a 
more  significant  heavy  metals  contamination  problem. 

Attempts  to  Contain  Mine  Wastes 

Maddow:   So  in  1977  and  really  in  a  big  way  in  1978,  the  utility  district, 
in  very  close  cooperation  with  the  Regional  Water  Quality  Control 
Board  for  the  Central  Valley  and  with,  I  guess  I  would  call  it, 
sort  of  grudging  cooperation  on  the  part  of  the  California 
Department  of  Fish  and  Game,  went  in  to  try  to  engineer  a 
containment  scheme  to  keep  the  mine  wastes  from  reaching  the 
Mokelumne,  reaching  Camanche  or  the  river.   At  first  the  regional 
board  was  pushing  East  Bay  to  do  some thing- -eventually  the 
utility  district  was  successful  in  getting  the  state  agencies  to 
agree  to  work  together. 

At  the  heart  of  the  scheme  was  the  idea  that  there  should  be 
ditches  built  above  and  around  the  old  mine  site  so  that  clean 
water,  rainfall,  that  was  falling  in  the  uphill  areas  would  flow 
as  surface  water  runoff,  be  intercepted  by  the  ditches,  and  reach 
the  river  without  ever  going  into  the  contaminated  areas.  That 
was  to  be  the  heart  of  the  system.  That  part  of  the  system  was 
to  be  constructed  by  the  Regional  Water  Quality  Control  Board. 
And  in  candor  and  for  reasons  that  I'm  not  sure  I  ever  knew,  or 
if  I  did  I  shouldn't  try  and  comment  on  them  because  I  don't  know 
about  them  from  a  technical  standpoint,  but  that  part  of  the 
system  was  never  really  completed.   The  regional  board  either 
couldn't  do  it,  didn't  do  it,  or  didn't  do  it  right.   Something 
along  those  lines.  And  the  result  was  that  there  was  more  water 
reaching  the  mine  area  than  should  have  happened  for  this  system 
to  have  fully  worked  as  it  had  been  conceived. 


The  other  principal  element  of  the  system  was  something 
called  Mine  Run  Dam.  There  were  two  creeks  that  ran  down  into 
and  through  the  mine  property.   One  was  called  Hinkley  Run,  and 
one  was  called  Mine  Run.  At  the  base  of  the  mine  property,  in 
the  area  that  the  utility  district  had  acquired,  they  kind  of 
came  together.  The  utility  district  built  a  small  dam  there. 
The  idea  was  to  contain  the  runoff  from  precipitation  that  fell 
on  the  mine,  and  to  the  extent  that  there  was  any  leaching  coming 
out  of  the  mine,  out  of  the  soil,  it  would  be  contained  there. 

There  was  this  series  of  old  evaporation  ponds  that  had  been 
left  when  the  mine  was  abandoned,  and  those  were  kind  of  scooped 
out  and  cleaned  up  a  bit,  in  hopes  that  they  would  continue  to 
function  as  evaporation  ponds,  and  Mine  Run  Dam  down  there  would 
be  sort  of  a  last  resort.  The  idea  was  to  have  it  catch  the 
runoff  from  the  mine,  and  then  eventually  there  would  be  a 
process  of  evaporation.  Mine  Run  Dam  was  built  so  that  it  could 
have  water  on  both  sides  of  it  because  at  its  high-water  mark, 
Camanche  would  be  inundating  the  downstream  side  of  Mine  Run  Dam, 
and  this  impoundment  of  water  which  had  crossed  the  mine  property 
and  picked  up  mine  wastes  would  be  on  the  upstream  side  of  that 

It  worked  reasonably  well,  not  perfectly.  The  principal 
problem  being  the  failure  to  complete  the  ditches.  This  system 
was  not  an  easy  thing  to  do.  Nobody  wanted  to  do  it,  but  the 
utility  district  ended  up  doing  it,  on  the  theory  that  nobody 
else  was  going  to  come  to  the  aid  of  the  utility  district. 
Nobody  else  was  going  to  step  up  to  try  and  clean  up  this 
problem.   It  was  not  a  problem  of  the  utility  district's  making, 
but  somebody  had  to  in  essence  serve  as  the  Good  Samaritan.   And 
that's  really  what  the  district  did. 

There's  no  question  but  that  it  did  so  under  threat  of  some 
sort  of  regulatory  action,  principally  by  the  Regional  Water 
Quality  Control  Board.   But  instead  of  simply  saying,  "Throw  down 
the  gauntlet  and  let's  get  into  it,"  the  utility  district's 
approach  was  to  try  and  work  with  the  regional  board  and  Fish  and 
Game  to  come  up  with  a  solution. 


The  regional  board  has,  I  don't  know,  between  the  Central 
Valley  board  and  the  other  boards  there  are  probably  10,000 
abandoned  mines  in  California.  There  haven't  been  very  many  of 
them  which  have  created  problems  of  this  magnitude.   Iron 
Mountain  is  the  other  one  that  gets  all  the  attention.   It's  up 
near  Lake  Shasta. 

Involvement  of  Regional  Water  Quality  Control  Board  and 
Department  of  Fish  and  Game 

Maddow:   It's  pretty  clear  that  the  water  board  grudgingly  came  to  the 

idea  that  it  ought  to  assist  in  all  of  this,  but  when  it  did  so, 
it  really  did  get  into  it.  And  to  the  credit  of  that  regional 
board  and  the  people  who  worked  on  it,  when  they  made  the 
decision  to  become  a  co-Good  Samaritan,  they  stuck  with  it  right 
through  the  end,  even  though  they  got  very  badly  beaten  up  by  it 
and  as  a  result  of  it  over  the  years. 


LaBerge:   What  was  your  involvement? 

Maddow:   At  the  time  that  we  were  trying  to  figure  out  a  way  to  solve  the 
problem,  to  address  the  problem,  I  was  the  lawyer  who  was  on 
point,  working  very  closely  with  the  man  who  at  that  time  was  the 
district's  director  of  engineering,  a  man  named  Walt  Anton,  who 
is  dead  now.   Walt  had  the  technical  idea,  and  my  role  was  to 
work  with  the  regional  board  staff  and  lawyers  to  try  and  make 
sure  we  could  put  together  something  that  would  be  consistent 
with  California  law  and  which  would  make  institutional  sense  for 
both  entities.   Much  later  federal  law  became  very  important 
regarding  this  effort,  but  back  at  the  beginning  state  law  was 
the  focus. 

One  of  the  things  that  I  was  insistent  on  was  that  the 
utility  district  do  everything  that  it  could,  including  just 
pressuring  the  regional  board,  to  get  the  Department  of  Fish  and 
Game  to  sign  off  because  you  have  to  remember  that,  on  the 


downstream  side  of  Camanche  Reservoir,  there's  a  fish  hatchery 
that's  operated  by  the  Department  of  Fish  and  Game  as  one  of  the 
mitigations  for  the  utility  district  building  Camanche  Reservoir. 
And  that  fish  hatchery  in  a  sense  was  kind  of  the  canary  in  the 
coal  mine.   If  there  were  going  to  be  water  quality  problems 
stemming  from  the  Penn  Mine,  they  would  probably  first  be 
realized  in  that  sensitive  environment  of  the  fish  hatchery.   It 
had  eggs  and  fry  and  those  kinds  of  things . 

So  I  thought  it  would  be  important  to  have  Fish  and  Game  not 
necessarily  as  a  co-Good  Samaritan  but  at  least  acknowledging 
what  was  happening  and  getting  them  to  sign  off  in  recognition  of 
what  we  were  trying  to  do.  I  viewed  what  we  did  as  being 
moderately  successful  in  the  sense  that  institutionally  at  the 
time  it  worked.  We  worked  very  closely  with  the  executive 
director  of  the  regional  board,  a  man  named  Jim  Robertson,  who 
will  ever  remain  in  my  memory  because  in  his  office  he  had  three 
things  on  his  wall:   his  college  diploma,  his  registration  as  a 
professional  engineer,  and  in  between  the  two  of  them  he  had  a 
photostat  of  his  birth  certificate,  with  his  two  little  feet!   I 
always  thought  that  he  understood  the  important  things  in  his 

But  the  man  at  the  regional  board  who  really  made  it  go  was 
named  Bill  Crooks,  who  was  assistant  executive  director,  and 
later  became  the  executive  director.   And  we  worked  very  closely 
with  a  lawyer  who  was  from  the  state  board  legal  staff  but  was 
assigned  to  that  regional  board.  His  name  was  Buck  Taylor. 
Buck,  of  course,  was  the  lawyer  for  the  state  board  many  years 
later,  on  the  American  River  stuff. 

LaBerge:   Okay.   That  name  was  familiar.   Maybe  you  mentioned  him. 

Maddow:   Yes,  I  think  I  probably  did.   I  have  a  very  high  regard  for  Buck. 
I  think  he's  an  excellent  lawyer.   He's  one  of  the  really  good 
people  working  for  the  state  in  water  resources  matters. 

In  any  event,  the  district  put  together  this  project.  Tom 
Linville,  who  we  talked  about  before,  who  is  now  assistant 


general  manager  of  Contra  Costa  Water  District,  was  the  project 
engineer.   He  has  a  photograph  up  on  the  wall  of  his  office  now, 
something  that's  called  "Linville  Dam."  That's  what  we  jokingly 
called  it.  And  that  picture  says  that  the  lake  behind  it  is 
known  as  "Lake  Maddow."   (I  don't  want  that  to  be  my  claim  to 
fame!)   So  we  kind  of  went  way  back  with  all  of  that. 

The  problems  really,  however,  became  serious  ones  and  much 
more  expensive  ones  for  the  utility  district  in  the  eighties.  An 
organization  called  the  Committee  to  Save  the  Mokelumne  became 
very  involved  in  activities  concerning  the  utility  district  on 
the  Mokelumne  and  in  general.   They  became  involved  at  a  number 
of  different  places  at  times.  When  I  talked  before  about  I 
jokingly  referred  to  as  the  Stein  Plan,  the  pump-back  scheme  in 
the  eighties,  the  Committee  to  Save  the  Mokelumne  became  very 
involved  in  all  of  that. 

But  they  got  really  interested  in  Penn  Mine.   Mr.  Bill 
Jennings,  who  was  and  I  suspect  still  is  the  main  person  in  that 
organization,  believed  that  the  utility  district  had  made  a 
terrible  mistake  when  it  built  Pardee  because  Pardee  intercepted 
flows  that  would  otherwise  have  diluted  the  mine  wastes .  The 
mine  was  already  there  when  Pardee  was  built.   And  he  thinks  the 
utility  made  a  worse  mistake  when  it  built  Camanche,  which  he  at 
various  times  characterized  as  a  heavy  metal  sink  for  what's 
coming  off  the  mine,  et  cetera. 

He  and  his  organization,  with  the  legal  assistance  of  the 
Sierra  Club  Legal  Defense  Fund,  put  together  quite  a  significant 
effort,  primarily  under  federal  law,  to  in  effect  get  a  higher 
degree  of  regulation  of  Mine  Run  Dam  and  the  old  Penn  Mine 
solution,  and  to  force  the  district  and  the  regional  board  to  do 
what  under  some  other  circumstances  might  be  almost  like  a 
Superfund  cleanup.   It  was  not  done  under  Superfund,  but  it 
almost  has  some  of  those  trappings. 


Committee  to  Save  Mokelumne  R±ver  v.  EBMUD,  1993 

Maddow:   To  make  a  long  story  short,  the  district  took  a  pretty  tough 
beating,  in  my  opinion,  in  those  cases.  There  are  several 
different  elements  to  the  battle.  But  the  main  case  that  I  think 
about,  because  it  was  going  on  when  I  was  still  there  and  it  was 
decided  not  too  long  after  I  left,  is  a  case  that's  called 
Committee  to  Save  Mokelumne  River  v.  East  Bay  MUD.   It's  recorded 
in  the  Federal  Reporter.   It  was  decided  by  the  Ninth  Circuit, 
[United  States]  Court  of  Appeals  on  December  29th,  1993. l  And 
I'll  give  you  a  copy  of  the  opinion.2 

LaBerge :  Great .  Okay . 

Maddow:   In  effect  in  that  case  the  Court  of  Appeals  held  that  the  federal 
district  court  judge  up  in  Sacramento,  Judge  [Lawrence]  Karlton, 
was  correct  when  he  determined  that  Mine  Run  Dam  and  the  efforts 
of  the  utility  district  in  particular  should  be  regulated,  could 
be  regulated  under  the  federal  Clean  Water  Act.   When  Mine  Run 
Dam  got  built  in  the  first  place  and  then  as  we  began  to  deal 
with  the  Committee  to  Save  the  Mokelumne  arguments,  et  cetera, 
one  of  the  things  that  we  had  relied  upon,  frankly,  was  a  legal 
opinion  which  I  expressed — I  wasn't  the  only  one,  but  I  certainly 
did- -that  Mine  Run  Dam  was  not  subject  to  the  requirements  of  the 
Clean  Water  Act  concerning  getting  something  called  an  NPDES 
permit,  National  Pollution  Discharge  Elimination  System  permit. 
That ' s  the  type  of  permit  you  find  on  sewage  treatment  plants . 

There  had  been  some  case  law,  particularly  a  case  called 
National  Wildlife  Federation  v.  Gorsuch.3  She  was  the 
administrator  of  the  EPA  back  in  the  seventies,  I  think.   Those 
cases  indicated  to  me  that  a  mine  was  not  a  point  source  and  that 

43  F.3d  305  (9th  Cir.  1993). 

2See  Appendix. 

3693  F.2d  156  (D.C.  Cir.  1982). 


therefore  NPDES  requirements  didn't  apply.  Judge  Karlton  held 
and  the  Ninth  Circuit  affirmed  the  decision  that  said  that  this 
dam  was  different,  and  therefore  regulation  under  the  Clean  Water 
Act  was  possible. 

I  don't  think  we  would  have  gotten  to  that  decision  had  the 
EPA  [Environmental  Protection  Agency]  attorney  not  walked  into 
the  courtroom  on  the  day  Judge  Karlton  was  holding  the  critical 
hearing  and  stated  for  the  first  time  that  the  EPA  decided  that, 
by  golly,  it  was  possible  for  this  dam  to  be  regulated  under  the 
Clean  Water  Act.  They  had  never  made  a  commitment.  They  had 
never  said  anything.  And  then  all  of  a  sudden,  in  the  middle  of 
the  hearing,  their  lawyer  showed  up  and  spoke.   It  came  as  a  real 
surprise  to  us. 

That  was  important  in  the  way  the  judge  made  his  decision, 
but  I  don't  mean  to  sound  as  if  I'm  attacking  the  EPA  or  that 
person.   Those  kinds  of  things  happen  in  litigation  all  the  time, 
which  is  one  reason  why  litigation  is  frequently  not  a  good  tool 
for  accomplishing  any  particular  objective.   The  point  of  it  is 
that  as  a  result  of  all  this  litigation,  the  utility  district 
ended  up  moving  from  Good  Samaritan  to  Deep  Pocket.   So  now,  in 
the  years  since  I've  left,  the  utility  district  has  found  itself 
having  to  come  up  with  a  very  expensive  fix  for  the  old  Mine  Run 

In  fact,  it's  my  understanding  that  Mine  Run  Dam  will  be 
dismantled  as  a  part  of  this.   I  find  that  to  be  somewhat  ironic 
because  the  data  which  was  assembled  at  the  time  the  case  I've 
been  referring  to  was  decided  indicates  that  Mine  Run  Dam  made  an 
enormous  contribution  to  containment  of  the  contaminants  which 
otherwise  would  have  reached  the  Mokelumne  River,  reducing  those 
contaminants  by  something  well  in  excess  of --as  I  recall,  it's 
something  like  99  percent.   Now,  that  number  needs  to  be  checked 
by  someone,  and  there's  no  question  that  some  contaminants 
continued  to  reach  the  Mokelumne  after  those  facilities  were 
built,  but  dramatically  reduced  in  volume  and  rate. 


Even  so,  the  court  said,  "We're  not  getting  to  the  facts. 
This  case  is  being  decided  on  the  law.   Can  this  particular  set 
of  facilities  be  regulated  as  a  result  of  the  Clean  Water  Act, 
the  way  in  which  the  Clean  Water  Act  works?"  As  I  say,  we  lost 
that  case,  and  the  result  has  been  that  the  district  has  ended  up 
in  this  deep  pocket  mode. 

There  was  a  unanimous  decision  of  the  Ninth  Circuit  Court  of 
Appeals.   But  there  was  a  concurring  opinion  by  Judge  Fernandez 
that  really  caught  my  attention  because  my  reading  of  his 
concurring  opinion  is  that  he  was  reaching  the  same  conclusion  as 
the  other  members  of  the  court,  but  he  was  really  troubled  by  it. 
And  he  said—let  me  see  if  I  can  find  that  critical  passage  or 

[Reading]   "Unregulated  quantities  of  pollutants  were 
flowing  into  the  river  and  causing  fish  kills  and  the  like  long 
before  East  Bay  MUD  and  Board"  (the  regional  board)  "did  anything 
at  all.   Those  entities  sought  to  eliminate  the  disasters  caused 
by  that  unregulated  flow,  and  that  is  why  the  project  was  built. 
The  result  has  been  a  significant  improvement  in  the  river's 
environment  and  a  boon  to  aquatic  life."  And  there's  a  good  deal 
more  discussion  of  the  legal  principles,  et  cetera,  that  were 

And  he  says,  "Appellants"  (the  district  and  the  regional 
board)  "earnestly  argue  that  EPA's  approach,  and  that  of  the 
appellee's,  will  not  serve  the  long-term  purpose  of  bettering  the 
aquatic  environment.   They  indicate  that  it  takes  no  genius  or 
epopt,"  e-p-o-p-t.1  I  don't  know  that  word.   I  remember  looking 
it  up  when  the  decision  came  out  in  1993,  but  I've  forgotten  what 
it  is.   "  takes  no  genius  or  epopt  to  see  what  the  message 
will  be.   Do  nothing!"  Exclamation  point.   "Let  someone  else 
take  on  the  responsibility.   Let  the  water  degrade.   Let  the  fish 
die.   But  protect  your  pocketbook  from  vast  and  unnecessary 
expenditures.   Do  not  try  to  bring  some  order  out  of 

Webster's  defines  epopt  as:   an  initiate  in  the  highest  grade  of  the 
Eleusinian  mysteries;  hence,  one  instructed  in  a  secret  system. 


environmental  chaos.   In  short,  appellant  suggests  that  no 
Odysseus  or  Daedalus  crafted  the  policy  which  we  are  now  asked  to 
follow.   Perhaps  they  are  correct.   I  suspect  they  are." 

That,  to  me,  is  a  judge  who  was  very  troubled  by  the  place 
that  the  law  left  him.  He  couldn't  help  but  reach  that  result. 
But  it's  a  good  characterization  of  where  the  utility  district 
found  itself.  What  I  always  thought  was  really  interesting  was 
that  about  the  time  this  was  all  going  on,  the  executive  director 
of  the  State  Water  Resources  Control  Board,  after  the  trial  court 
decision,  sent  out  a  memorandum  to  the  executive  directors  of  all 
the  regional  boards,  and  he  in  effect  said,  "Do  nothing.  Don't 
embark  on  any  mine  waste  cleanup  problems  because  the  state  can 
end  up  holding  the  bag."  I  think  that's  lousy  public  policy, 
but  that's  the  result  of  this  decision.  Do  nothing. 

I  don't  know  what  they've  done  since  then,  but  it  does  show 
--I  don't  quarrel  with  Mr.  Jennings  or  the  Committee  to  Save  the 
Mokelumne's  attacks  that  they  brought.   I  don't  quarrel  with  the 
result.   I'm  just  saying  that  from  a  public  policy  standpoint 
sometimes  you  have  to  take  a  little  broader  view,  and  I  don't 
think  that  that  was  evidenced  in  the  case,  as  I  view  it.  Mr. 
Jennings  would  argue  that,  I'm  sure. 

As  it  now  stands,  the  utility  district  and  the  Regional 
Water  Quality  Control  Board  have  embarked  on  a  very  significant 
cleanup  program.   I  don't  know  all  of  its  details.   I'm  sure  that 
that  can  be  found  out  from  the  utility  district.  But  it's  going 
to  involve  the  dismantling  of  Mine  Run  Dam,  and  it  wouldn't 
surprise  me  at  all  to  find  out  that  one  of  the  other  things  it 
will  involve  is  finally  constructing  those  ditches  that  were  Walt 
Anton's  idea  to  keep  the  clean  water  from  getting  into  the  mine. 
That  might  be  one  of  the  best  things  that  could  happen.   If  it 
had  happened  back  in  1978,  maybe  we  wouldn't  have  gone  through 
the  rest  of  all  this. 

The  legal  department  at  East  Bay  MUD  was  very  much  involved 
in  this.   So  was  the  district's  wastewater  department,  largely 
because  it  was  viewed  as  a  series  of  very  difficult  regulatory 


agency  problems  that  involved  both  the  EPA  and  the  state 
agencies.  From  an  organizational  standpoint,  the  general  manager 
(Mr.  Gilbert)  made  the  determination  that  those  kinds  of  problems 
could  best  be  handled  in  the  district's  wastewater  department, 
where  they  had  a  tremendous  amount  of  experience  in  dealing  with 
EPA  and  the  regional  and  state  boards,  as  a  result  of  the 
wastewater  things  that  were  going  on  in  the  district  that  I'll 
talk  about  in  a  moment. 

So  the  leadership  of  the  district,  from  a  technical 
standpoint,  came  from  Wally  Bishop  and  Mike  Wallis  and  the  water 
quality  people.   A  man  named  Richard  Sykes.   The  lawyers  were 
very  much  involved.  The  district  had  special  counsel,  a 
Washington  law  firm  called  Swidler  &  Berlin.   Very  good  lawyers 
who  really  know  their  way  around  the  Clean  Water  Act,  but  they 
took  a  beating  here.   On  the  other  side  it  was  primarily  the 
lawyers  from  the  Sierra  Club  Legal  Defense  Fund,  who  were  good 
people  and  who  litigated  effectively. 

I  think  one  of  the  results  of  the  settlement  of  one  of  the 
pieces  of  litigation  was  that  the  utility  district  paid 
attorneys'  fees  to  the  Committee  to  Save  the  Mokelumne.   I  think 
it  was  an  award  in  the  nature  of  private  attorney  general's  fees. 
This  happened  after  I  left.   But  it's  my  general  understanding, 
that  someone  from  the  utility  district  can  confirm,  that  funds 
paid  by  the  utility  district,  either  as  attorneys'  fees  or 
perhaps  damages,  but  I  think  attorneys'  fees,  were  used  by  Mr. 
Jennings  in  either  his  current  organization  or  his  original 
organization,  the  Committee  to  Save  the  Mokelumne,  or  perhaps 
through  another  organization  he's  involved  in  called  the 
California  Sport  Fishing  Protective  Alliance. 

In  any  event,  one  way  or  another,  they  created  an 
organization  called  Delta  Keeper.   Kind  of  like  Bay  Keeper  here 
in  the  Bay,  where  there  is  a  staff  of  scientists  and  volunteers 
and  gosh  only  knows  what  else,  who  deal  with  water  quality 
problems  in  the  Bay.   Bill  Jennings  is  the  Delta  Keeper,  and  his 
organization  does  the  same  sort  of  thing  up  there.   I  believe  it 
is  at  least  partly  funded  through  this  East  Bay  MUD  award  through 


one  of  these  pieces  of  litigation.  I  have  no  hard  evidence,  but 
someone  from  San  Joaquin  County  told  me  that  a  few  years  ago. 

There  were  two  parallel  pieces  of  litigation.  One  was  the 
action  by  the  utility  district  against  the  Commerce  Department. 
That  was  started  shortly  before  I  left.   Swidler  &  Berlin  was 
also  handling  that.   It  has  been  resolved  against  the  district 
since  then. 

And  then  the  Committee  to  Save  the  Mokelumne,  I  believe, 
actually  through  another  law  firm,  another  group,  not  the  Sierra 
Club  Legal  Defense  Fund  but  another,  perhaps  the  Earth  Island 
Institute,  brought  an  action  under  the  California  Toxic  Pits 
Control  Act,  and  that  litigation  was  filed  before  I  left.   It  was 
kind  of  put  on  hold,  pending  the  outcome  of  the  case  before  Judge 
Karlton.  And  I  know  that  that  case  is  no  longer  on  hold,  but  I 
don't  know  its  exact  status,  and  I  don't  know  exactly  how  it  has 
been  resolved.  And  that's  something,  again,  you'd  have  to  find 
out  from  the  utility  district. 

A  huge  round  of  litigation  and  lots  of  lots  of  attorneys ' 
fees,  lots  of  tough  fights.   The  utility  district  took  a  bit  of  a 
beating.   I  continue  to  believe  that,  from  a  policy  perspective, 
what  the  utility  district  did  in  "78  was  the  right  thing  to  do. 
I  wish  it  had  been  done  better.   I  wish  that  the  utility  district 
had  not  had  to  do  it  in  '78,  but  if  it  hadn't  done  what  it  did, 
the  consequences  could  have  been  much  worse. 

That's  the  sordid  tale  of  the  Perm  Mine  in  this  man's 

LaBerge:   Anything  more  on  that  tale? 

Maddow:   When  we  visited  Penn  Mine,  we  should  have  taken  four -wheel-drive 
vehicles  because  it  was  a  little  rocky.   But  when  you  first  drove 
into  the  mine  site,  when  you  first  saw  it,  it  looked  like  you 
were  on  a  moonscape  rather  than  on  Earth  because  it  was  this  area 


that  had  been  so  heavily  mined  and  it  was  so  heavily  covered  with 
material  that  had  been  brought  up  out  of  these  mine  shafts  and 
left  in  various  and  sundry  states. 

But  the  most  eerie  thing  about  it  was  that  there  were  these 
evaporation  ponds,  and  the  water  in  them  was  laced  with  a  variety 
of  heavy  metals,  and  in  the  late  afternoon  sun  the  colors  of 
those  things  were  like  a  painter's  palette.   It  was  just  eerie. 
It  was  one  of  those  things  where  you  thought,  "This  is  not  a  good 
place  for  any  form  of  life  to  be."   [chuckling]  And  that,  of 
course,  is  one  of  the  principal  things  that  was  motivating  Mr. 
Jennings  and  the  people  who  brought  the  actions  against  the 

And  they're  right!   It's  just  how  do  you  cope  with  that, 
under  the  circumstances?  What  kinds  of  resources  do  you  put  into 

Public  Policy  Issue 

LaBerge:  Who  was  the  head  of  the  State  Water  Resources  Control  Board  then? 

Maddow:   The  executive  director  at  that  time  was  Walt  Pettit.   He  is  still 
the  executive  director.   I  would  have  to  say  that  this  memorandum 
that  he  sent  to  the  executive  officers  of  the  regional  boards 
would  have  been  in  1992  or  maybe  early  1993.   I'm  sure  that  can 
be  found,  either  through  state  board  files  or  utility  district 
files.   I  don't  have  a  copy  of  it. 

There  was  one  other  interesting  thing.   This  was  after  I 
left.  But  it  may  be  something  that  from  an  historic  standpoint 
you  might  want  to  pick  up  on.   In  September  of  1993,  which  was 
six  months  after  I  had  left  the  district's  employ,  there  was  a 
dialogue  between  a  man  named  Harry  Seraydarian,  who  was  a  very 
high-level  official  with  the  EPA  in  Region  9  in  San  Francisco. 
He  was  the  director  of  the  water  management  division  of  Region  9 . 


Harry  made  an  appearance  before  the  East  Bay  MUD  board  of 
directors  in  a  public  meeting  on  September  14,  1993,  and  tried  to 
urge  the  utility  district  board  to  enter  into  a  consent  order  for 
the  cleanup  of  Penn  Mine.  That  dialogue  was  transcribed.  The 
transcription  is  47  pages  long,  and  I  got  a  copy  of  it  at  some 
point,  and  I'll  be  happy  to  loan  it  to  you.   I  have  no  idea  what 
use  you  can  put  it  to.1 

But  the  reason  it  may  be  interesting  from  an  historic 
perspective  is  that  in  September  of  1993  the  utility  district 
board  of  directors  was  led  by  people  who  were  very  strongly 
committed  to  environmental  protection  and  environmental  issues . 
And  their  frustration  with  the  approach  which  the  EPA  was  taking 
just  drips  out  of  these  pages.  For  me,  it  was  kind  of  a 
microcosm  of  the  frustration  that  the  utility  district,  back  in 
1978,  when  we  were  getting  started,  through  the  eighties  and  into 
the  nineties ,  when  we  had  the  board  that  was  in  charge  of  East 
Bay  MUD  that  was  so  highly  energized  in  an  environmental 
direction- -they  all  exuded  this  type  of  frustration  at  one  point 
or  another,  and  this  transcript  just  catches  it  for  that  last 
board.   And  that's  why  I  thought,  from  an  historic  perspective, 
that's  an  interesting  dialogue. 

LaBerge:   And  I'll  return  this  to  you? 
Maddow:   Of  course. 

The  other  document  I  will  loan  to  you  but  I  would  like  to 
get  back  at  some  time  was  from  about  a  week  later.   The  same 
executive  director  of  the  regional  board,  Walt  Pettit,  wrote  a 
letter  to  Mr.  Seraydarian  of  the  EPA,  expressing  the  concerns  of 
the  State  Water  Resources  Control  Board,  at  least  at  the  staff 
level,  to  this  proposed  consent  order  that  EPA  was  suggesting  for 
Penn  Mine. 

In  the  first  place,  it's  a  very  well-written  letter,  from  my 
perspective.   You  know,  a  lot  of  people  might  want  to  argue  with 

'Deposited  in  The  Bancroft  Library. 


that,  but  the  reason  I  think  it's  so  well  written  is  that  it  does 
an  excellent  job  of  relating  the  public  policy  issues  and  the 
legal  issues  and  the  regulatory  issues,  and  what  it  shows  is  how 
they  didn't  always  coincide.   And  it  becomes  a  question  of 
balance  and  perspective. 

These  two  documents,  taken  side  by  side—the  transcript  of 
the  Seraydarian  dialogue  in  particular,  with  East  Bay  MUD's 
director,  Andrew  Cohen,  and  then  this  letter  from  Walt  Pettit  to 
Seraydarian.   I  find  those  to  be  fascinating  from  the  standpoint 
of  anybody  who  ever  wants  to  do  a  case  study  of  the  collision  of 
regulatory  and  legal  and  public  policy  themes. 

So  I'll  pass  those  along.   I  have  no  idea  whether  they're 
the  kind  of  thing  that  can  fit  into  the  kind  of  project  you're 
doing.  Again,  these  occurred  six  months  after  my  departure  from 
the  utility  district,  so  I  can  only  offer  them  as  something 
that ' s  been  a  part  of  my  historic  reading .   But  a  good  little 
snapshot.   That's  all  I  want  to  say  about  Perm  Mine. 

EPA's  Involvement 

LaBerge:  The  suit  was  brought  by  the  Committee  to  Save  the  Mokelumne? 

Maddow:  Correct. 

LaBerge:  The  EPA  was  involved  because  of  the  Clean  Water  Act? 

Maddow:  Yes. 

LaBerge:  Or  the  friend  of  the  court?  Or  what? 

Maddow:  Well,  the  EPA  had  decided — that's  a  very  good  question,  and  I 
should  have  a  more  precise  answer  than  I'm  about  to  give  you, 
because  my  recollection  is  just  a  little  foggy. 


LaBerge:   But  when  you  said  the  EPA  lawyer  waltzed  in. 

Maddow:   Well,  EPA  was  not  a  party  to  the  litigation. 
LaBerge:   Okay. 

Maddow:   But  the  opinion  of  the  EPA  was  considered  to  be  of  considerable 
importance  to  the  court,  and  as  I  recall,  Judge  Karlton  actually 
asked  for  their  input  at  one  point,  for  their  contemporaneous, 
administrative  interpretation  of  the  act.   They  are  the  ones 
charged  with  the  implementation  of  the  act.   As  I  recall,  that's 
referred  to  in  the  appellate  court  decision  that  I  just  passed 
onto  you.  The  place  I  remember  seeing  it  most  recently  is  in 
Judge  Fernandez's  concurring  opinion  again.   He  said,  "It  seems 
to  me  that,  given  the  history  of  this  project,  the  EPA  could 
properly  have  determined  that  this  really  is  much  more  like  the 
dams  it  dealt  with  in  National  Wildlife  Federation  v.  Gorsuch," 
et  cetera. 

And  then  he  goes  on  to  say,  "But  it  did  not.   In  fact,  the 
information  before  the  district  court  and  before  us  indicates 
that  EPA  considers  the  project  to  be  a  point  source."  And  so  EPA 
came  to  that  decision,  that  it  was  a  point  source,  and  EPA  on 
having  come  to  that  decision  in  essence  had  to  take  some  kind  of 
enforcement  action.  That  consent  order,  which  is  the  subject  of 
the  dialogue  in  the  transcript  I  just  gave  you  and  the  Pettit 
letter,  was  an  outcome  of  EPA's  determination  that  some  sort  of 
action  on  its  part  needed  to  be  taken. 

For  a  long  time,  the  utility  district  thought  that  EPA 
involvement  could  be  a  good  way  to  solve  the  problem  if  EPA  took 
a  point  of  view  that  perhaps  started  with  what  the  traditional 
case  law  had  been,  and  perhaps  took  more  of  a  problem- solving 
type  approach  to  this.   Instead,  they  took  a  pure  regulatory 
approach  and  said,  "Thou  shalt,"  rather  than  "We  can."  And  that 
was  an  enormous  frustration,  I  know,  to  the  utility  district,  in 
particular  to  the  board  of  directors  of  the  utility  district  in 
the  nineties. 


Wastewater  Treatment 

LaBerge:  Well,  since  you  mentioned  wastewater,  shall  we  go  into  that? 

Maddow:   Yes.  And  I  have  a  couple  of  things  I  can  say  about  that,  and 
I'll  make  it  relatively  brief.  When  I  arrived  at  the  utility 
district  in  the  early  seventies,  it  was  in  the  process  of  being 
one  of  the  agencies  to  comply  in  a  very  big  way  with  the  1972 
Amendments  to  the  Federal  Water  Pollution  Control  Act.  Those  are 
the  amendments  that  required  sewage  treatment  plants  to  go  to 
secondary  treatment.  Frank  Howard  and  Jack  Reilley,  but  mainly 
Frank,  were  working  on  the  legal  aspects  of  what  it  was  going  to 
take  to  bring  the  utility  district  into  compliance  with  the 
federal  act. 

That  legal  work  was  primarily  done  by  Frank.   I  got  involved 
as  much  as  anything  else  in  the  early  years  in  contract  reviews 
and  things  like  that,  but  the  regulatory  work  was  principally 
work  which  Frank  did,  and  did  effectively. 

Much  later,  the  utility  district  at  one  point  looked  at  the 
possibility  of  getting  what  was  called  a  secondary  waiver,  given 
the  nature  and  location  of  the  sewage  treatment  outfall.   In 
essence,  what  that  was  all  about  was  that  Congress  provided  that 
certain  outfalls  into  ocean  water  would  not  necessarily  require 
full  secondary  treatment.   If  you  didn't  have  to  go  to  full 
secondary,  you  could  have  a  much  less  expensive  plant  to  build 
and  operate,  and  that  sort  of  thing. 

So  that  was  one  of  the  options  that  the  utility  district 
actually  looked  at  and  I  guess  I  would  have  to  say  pursued  in  a 
kind  of  a  limited  way.   Even  though  its  outfall  was  in  the  Bay, 
that  didn't  pass  muster,  and  the  utility  district  backed  away 
from  pursuing  that  alternative  and  in  fact  the  district  did  build 
a  full  secondary  plant,  a  model  plant,  really  an  outstanding 
plant,  down  there. 


Wet  Weather  Program 

Maddow:   My  involvement  actually  was  greater  in  the  wet  weather  things  a 
little  bit  later.  One  of  the  elements  of  the  Federal  Water 
Pollution  Control  Act  amendments  of  '72 — that  was  Public  Law  92- 
500--was  that  they  matured  and  they  came  back  before  the  Congress 
for  reviews  later.  That  was  planned.  That  evolved  into  the 
Clean  Water  Act.  And  one  of  the  things  that  came  through  the 
Clean  Water  Act  was  a  statutory  mandate  to  eliminate  infiltration 
and  inflow  from  storm  sewers  into  sanitary  sewers . 

All  over  the  country  there  has  been  this  major  effort  to 
deal  with  what's  called  the  CSO,  combined  sewer  overflow 
problems.   San  Francisco,  for  example,  for  decades  had  combined 
sanitary  and  storm  sewers,  and  one  of  the  reasons  why  they  have 
overflows  when  you  get  I/ 100th  of  an  inch  of  rain  over  there  is 
because  you  get  all  the  storm  water  mixed  in  with  the  sanitary 
sewers.  And  they  have  spent  a  billion  and  a  half  dollars  or 
something,  trying  to  get  rid  of  that  problem. 

Well,  in  the  case  of  the  utility  district,  it  was  a  tough 
engineering  and  institutional  problem  to  cope  with  those  wet 
weather  concerns  because  the  utility  district  doesn't  have  the 
collector  sewers.   The  collector  sewers  belong  to  the  six  cities 
and  to  the  sanitary  district  that  are  members  of  or  participants 
in,  this  wastewater  system  on  the  west  side  of  the  hills.   All 
the  utility  district  has  is  the  interceptors  and  the  treatment 
plant  and  the  outfall. 

The  problem  with  regard  to  storm  water  infiltration  and 
inflow  was  primarily  up  in  the  collection  system  sewers .   There 
were  some  problems  down  in  the  utility  district  system  because 
you  had  to  be  able  to  accommodate  peaks,  and  you  had  to  be  able 
to  deal  with  treatment.   The  challenge  was  to  find  a  project  that 
would  meet  the  regulatory  and  statutory  objectives  for  the  most 
reasonable  investment  of  funds  that  were  going  to  have  to  be 
generated  by  local  ratepayers,  because  by  the  time  we  got  around 


to  a  wet  weather  program,  there  essentially  wasn't  any  grant 
money  anymore. 

When  the  secondary  sewage  treatment  plant  was  built,  there 
was  a  lot  of  grant  money  around.   Seventy-five  percent  federal 
grant  money  and  12Jg  percent  from  the  state,  so  it  was  built  with 
8?Jg  percent  grant  money.  By  the  time  we  got  around  to  the  wet 
weather  program,  which  was  a  much  bigger  undertaking  in  terms  of 
dollars,  there  wasn't  any  grant  money  anymore. 

So  loans  and  revolving  funds  and  all  kinds  of  things  had  to 
be  a  part  of  it.  Anybody  who  lives  west  of  the  hills  and  in  the 
sewage  treatment  district  knows  that  their  sewer  bills  sometimes 
now  are  as  big  as  their  water  bills,  and  that's  because  of  the 
wet  weather  program  and  improvements  in  collector  sewer  systems. 

The  utility  district's  role  was  a  fascinating  one,  and  I 
have  to  give  Wally  Bishop  the  credit  for  being  the  architect  of 
this.  The  utility  district's  role  was  first  to  create  what  was 
called  a  Joint  Powers  Agency,  which  was  intended  to  attack  the 
problem  of  building  a  wet  weather  system  for  the  East  Bay  that 
would  meet  federal  law.  Each  of  the  cities  in  Special  District 
No.  1,  plus  Stege  Sanitary  District,  in  the  Kensington  area-- 
those  are  the  entities  that  contribute  sewage  to  the  wastewater 
system.   Each  of  them  was  a  member  of  the  joint  powers  entity. 
East  Bay  managed  it.   The  joint  powers  entity  in  essence 
designed,  financed,  and  constructed  a  wet  weather  program.   The 
cities  built  many  of  the  pieces  within  their  own  systems 
themselves,  but  the  project  that  got  built  ultimately--!  call  it 
the  "stealth  public  works  project." 

LaBerge:  That's  right. 

Maddow:   Not  very  many  people  in  the  East  Bay  knew  it  was  going  on,  but 

close  to  $650  million,  as  I  recall,  of  money  was  spent  upgrading 
the  sewage  treatment  systems,  separating  sanitary  sewers  from 
storm  sewers.   Before  this  was  done,  if  you  were  ever  down  around 
Lake  Merritt,  especially  down  at  the  foot  of  Lakeshore,  and  it 
was  raining,  you  used  to  be  treated  to  the  sight  of  something 



called  the  "fountains  of  Lakeshore,"  where  the  manhole  covers  out 
in  the  middle  of  the  street  would  have  water  spurting  up  out  of 
them  or  the  covers  would  float  away.   Sometimes  you'd  see  the 
manhole  covers  held  down  with  big  lead  weights. 

That  was  because  you  had  a  combination  of  storm  water  and 
sanitary  sewer  water,  and  the  sewer  capacity  was  exceeded.   All 
that's  gone  now  because  of  that  wet  weather  program.  And  it 
happened  in  a  quiet  and  efficient  and  effective  way,  and  it  was 
managed  very  effectively.   It  took  efforts  to  get  federal  law 
changed,  state  law  changed,  regulatory  procedures  managed  in  a 
very  effective  way. 

The  lawyers  had  a  minimal  role  in  it.  It  was  really  done 
through  the  force  of  will  and  the  persuasive  powers  of  people 
like  Wally  Bishop  and  the  people  who  worked  for  him.  Dennis 
Diemer,  Mike  Wallis,  a  team  of  very  capable  people,  and  a  top- 
notch  team  of  consultants .   We  had  lawyers  who  were  involved  in 
some  pieces  of  it,  but  I  have  to  say  it  was  not  a  lead  role.   We 
were  always  in  a  support  role. 

But  it  was  a  challenging  project  because  at  the  utility 
district  wastewater  problems  are  always  seen  as  taking  sort  of  a 
backseat  to  the  water  system  problems.  Those  always  have  more  sex 
appeal,  more  interest,  and  more  political  attention.   But  if  you 
look  at  the  utility  district  since  the  early  part  of  the 
eighties,  the  action,  in  terms  of  its  public  works  program,  its 
engineering  and  construction  programs,  et  cetera,  was  primarily 
in  the  wastewater  system.  And  if  you  look  around  the  staff  of 
the  organization  now,  many  of  the  top  people—the  general 
manager,  the  manager  of  operations,  the  principal  engineer  in  the 
water  system- -they  all  were  hired  as  a  part  of  that  wet  weather 
program,  in  one  way  or  another.   They  were  all  hired  to  improve 
the  wastewater  plant.   It's  all  part  of  that  "stealth  project." 

You  called  it  "stealth."  Did  other  people  call  it  "stealth?" 

I  don't  know  if  anybody  else  ever  did.   I  called  it  the  "stealth" 
because  it  was  going  on,  and  nobody  knew  it,  kind  of  like  those 


airplanes  that  have  that  stealth  technology  so  nobody's  radar 
sees  them.   So  that  was  my  view  of  it. 

Peripheral  Canal  Issue.  1982 

LaBerge:  Okay.  What  was  the  district's  stance  or  reaction  to  the 
Peripheral  Canal  in  1982? 

Maddow:   As  a  general  proposition,  the  utility  district  tried  for  a  while 

to  kind  of  stay  out  of  the  fight,  and  ended  up  in  a  position  of, 
I  think,  opposition,  mild  opposition  I  guess  I  would  call  it, 
because  it  didn't  want  to  get  into  the  fight.  The  utility 
district  took  its  water  around  the  Delta,  and  there  were  those 
who  used  to  say  that  the  Peripheral  Canal  was  an  attempt  to  do  in 
the  eighties  what  the  utility  district  had  done  in  the  twenties . 
Those  were  not  fights  or  arguments  the  utility  district  really 
wanted  to  get  into. 

But  it  got  drawn  out  a  bit  because  of  the  political  furor 
over  the  two  bills  that  went  through  the  legislature.   First, 
there  was  Senate  Bill  200,  and  then  a  few  years  later  Senate  Bill 
346.   I  think  it  was  346  that  ended  up  being  the  subject  of  the 
referendum,  et  cetera,  that  resulted  in  Proposition  9,  I  think  it 

LaBerge:  Yes. 

Maddow:   And  the  negative  vote  on  the  Peripheral  Canal. 

The  thing  that  I  always  found  most  interesting  about  it  was 
the  way  in  which  the  big  political  fight  about  the  Peripheral 
Canal  bled  over  into  utility  district  board  politics.   At  the 
time  that  the  big  fight  was  raging  on  a  statewide  basis,  there 
was  a  man  on  the  East  Bay  MUD  board  named  Bill  Moses ,  a  very  fine 
man,  an  attorney  from  out  in  Richmond.   One  of  the  governors  had 
appointed  him  to  the  California  Water  Commission,  which  is  like 


the  legislative  body  of  the  State  Department  of  Water  Resources. 
It  has  been  rare  that  we've  had  an  East  Bay  person  on  the  Water 
Commission,  and  so  I  always  thought  that  was  a  pretty  good  deal. 

But  the  commission,  at  some  point,  took  a  position  in 
support  of  one  or  both  of  Senator  Ayala's  bills  that  were  to 
build  the  Peripheral  Canal.   Bill  Moses  had  to  stand  for  election 
to  the  East  Bay  MUD  board,  and  he  was  opposed  by  a  man  named  Jack 
Hill,  who,  as  one  of  the  centerpieces  of  his  campaign,  raised  the 
fact  that  Bill  Moses  was  a  supporter  of  the  Peripheral  Canal, 
"which  was  a  terrible  thing,"  and  of  course  in  Bay  Area  politics 
it's  always  been  seen  as  a  terrible  thing. 

And  so,  from  my  perspective--!  don't  know  whether  either 
Moses  or  Hill  would  agree  with  this — but  from  my  perspective, 
that  was  one  of  the  reasons  why  Hill  beat  Moses — I  think  the 
first  time  an  incumbent  ever  got  beat  while  standing  for 
reelection.   One  of  the  principal  reasons  was  that  Hill  ran 
against  the  Peripheral  Canal.   I  always  thought  that  that  was 
fascinating  because  the  district  really  was  a  little  bit  removed 
from  the  Peripheral  Canal  issues. 

A  little  earlier  than  that,  in- -let  me  think  now.   In  the 
last  year  or  year  and  a  half,  something  like  that,  of  Ronald 
Reagan's  term  as  governor,  the  man  who  was  at  that  time  the  head 
of  the  Department  of  Water  Resources — I  think  it  was  John 
Teerink- -wanted  to  try  and  take  the  first  steps  toward  building 
the  Peripheral  Canal,  based  upon  the  Burns -Porter  Act  which  the 
voters  had  passed  in  I960.1 

There  was  a  school  of  legal  thought  back  around  the  early 
eighties,  or  political  thought,  that  they  didn't  need  any  new 
authorization,  they  didn't  need  any  new  bill  to  build  the 
Peripheral  Canal.   They  could  build  it  based  upon  what  the  voters 
had  approved  in  1960.  And  so  one  of  the  things  that  they  tried 

'The  Burns -Porter  Water  Bonds  Act  of  1959,  called  the  California  Water 
Resources  Development  Bond  Act,  was  passed  by  the  voters  as  Proposition  1, 


to  do  was  to  show  some  movement,  some  first  step,  some 
construction  actually  moving  forward  on  the  Peripheral  Canal 
during  that  governor's  administration. 

By  coincidence,  the  step  that  they  tried  to  get  started  with 
was  awarding  a  contract  for  the  construction  of  a  siphon  where 
the  Peripheral  Canal  would  have  gone  under  the  Mokelumne 
aqueducts.  The  Environmental  Defense  Fund  got  wind  of  that 
somehow,  and  one  of  their  people- -as  I  recall,  it  was  one  of 
their  lawyers — came  before  the  board,  or  was  talking  about  coming 
before  the  board  and  raising  an  issue  about  that. 

And  the  Department  of  Water  Resources,  as  I  recall,  kind  of 
backed  away,  and  the  issue  really  didn't  get  joined.  And  so  that 
was  part  of  the  prologue  to  what  later  became  the  two  Ayala 
pieces  of  legislation  and  this  political  furor  around  the  Moses 
and  Hill  election. 

But  the  utility  district  was  pretty  much  trying  to  keep  its 
distance  from  the  big  fight  because  it  viewed  itself  as  being 
separated  from  the  Delta  and  wanting  to  stay  separated  from  the 

The  last  thing  I'll  say  about  it  all  is  a  story  that  I'll 
tell  on  Gayle  Montgomery,  who  was,  of  course,  in  the  public 
information  office  for  the  utility  district  but  who  previously 
had  a  series  of  important  positions  with  the  Oakland  Tribune.   He 
once  told  me  that  when  Interstate  5  was  constructed  south  of 
Stockton,  that  the  borrow  pits  for  the  material  that  was  used  to 
build  the  embankment  that  the  road  sits  on  were  actually  selected 
after  having  looked  at  the  proposed  routing  of  the  Peripheral 
Canal.   And  so  in  essence  they  scooped  out  what  ultimately  would 
have  become  portions  of  the  canal  right-of-way  had  the  canal  ever 
been  built. 

He  showed  me  a  photograph  that  was  taken  by  a  Tribune 
photographer,  flying  over  that  area  in  a  rainy  period,  when  all 
those  little  ponds--you  know,  parts  of  the  borrow  pit—it's  like 
this  linear  borrow  pit,  with  separators  along  the  way,  so  it's  a 


series  of  ponds  sort  of  paralleling  1-5,  along  the  track  of  what 
would  have  been  the  Peripheral  Canal.  The  Oakland  Tribune  kind 
of  broke  that  story,  and  I  always  thought  that  it  was  just  kind 
of  an  interesting  anecdote.  Montgomery  always  took  great 
pleasure  in  all  of  that. 

My  recollection  of  it  was  sort  of  rounded  out  by  driving  by 
one  of  those  ponds  with  Gayle  Montgomery  one  time  and  seeing  it 
entirely  covered  with  snow  geese  and  seeing  them  all  take  off, 
which  was  one  of  those  gorgeous  sights  that  you  sometimes  see  out 
in  the  Delta. 

Now  I  don't  know  what  the  district's  posture  is  with  regard 
to  the  Peripheral  Canal.   The  utility  district  has  traditionally 
tried  to  keep  a  little  bit  of  distance.   It  has  traditionally 
tried  to  stay  in  the  mainstream  of  northern  California  politics 
or  political  views  on  issues  like  the  Peripheral  Canal.  And  of 
course  the  northern  California  view  has  always  been  a  very 
negative  one  in  regard  to  the  canal.  The  utility  district  tried 
to  keep  a  little  out  of  the  main  political  flow  of  that,  but 
there  may  have  been  policy  positions  that  have  been  adopted  since 
I  left  that  are  a  little  more  towards  the  anti-Peripheral  Canal 
sentiments  than  have  been  expressed  up  to  here. 

I  always  thought  the  Peripheral  Canal  and  the  water  industry 
in  northern  California  could  make  an  interesting  story  for 
somebody  because  I  think  an  argument  can  be  raised  that,  to  the 
extent  it  was  going  to  produce  a  better-quality  water  for 
anybody,  those  who  would  most  directly  benefit  would  be  northern 
California  customers  because  there  are  northern  California 
customers  of  the  State  Water  Project  in  Alameda  County  and  in 
Santa  Clara  County.  I  guess  primarily  those  counties  would  be 
the  ones  I'd  think  of  right  around  the  Bay,  who,  you  know,  if  the 
Peripheral  Canal  got  built,  they'd  get  better-quality  water 

And  all  they  have  is  a  short  aqueduct  between  them  and  the 
Delta.   They  don't  have  any  intervening  storage  or  anything  like 
that.   And  yet,  in  those  areas  you  were  seeing  93  percent  "no" 


votes  on  the  Peripheral  Canal  referendum,  et  cetera.   I  always 
thought  that  there  was  a  kind  of  a  gap  between  the  popular 
political  side  of  things  and  what  the  water  agencies  might  have 
been  trying  to  do.   I'm  not  trying  to  be  an  advocate  for  it.   I'm 
just  trying  to  observe  that  there  is  that  gap. 

I  don't  know  whether  there  will  ever  be  a  Peripheral  Canal. 
I  don't  think  there  will  ever  be  the  big  one.  I  think  ultimately 
something  is  going  to  have  to  get  done  to  make  sure  that  the 
drinking  water  that  comes  out  of  the  Delta  is  going  to  be  of  an 
assured  quality.  And  that's  a  different  question.  That  can  be  a 
different  question  than,  Should  we  build  a  Peripheral  Canal?   I 
think  we're  a  long  way  from  knowing  what  the  ultimate  result  will 

This  Cal-Fed  process  that's  now  underway  is  the  best  hope 
for  a  comprehensive  look  at  solving  those  issues.   I  think  the 
utility  district  is  probably  a  player  in  all  that.   I  don't  know 
exactly  how  they're  participating,  but  I  know  they've  had  people 
in  a  lot  of  the  meetings  I've  attended,  that  sort  of  thing. 

I  guess  I  would  say  other  than  being  bashed  mightily  about 
the  head  and  shoulders  for  having  its  own  miniature  version  of 
the  Peripheral  Canal,  and  getting  dusted  by  these  various  and 
sundry  political  issues,  the  Peripheral  Canal  has  not  been  center 
stage  for  the  utility  district.  Thankfully.   [laughing]. 

Variety  in  the  Legal  Department 

Divorce  Case 

Maddow:   I  wanted  to  tell  you  my  five-minute  vignette  about  variety.  I've 
told  this  story  many  times.   It  may  be  on  an  earlier  tape.  I'll 
make  it  brief.  One  of  the  reasons  I  stayed  at  the  utility 
district  for  twenty  years  as  an  attorney  is  that  the  variety  was 


the  most  constant  factor.   I'm  not  a  litigator  and  never  was. 
But  in  my  tenure  at  the  utility  district  I  appeared  in  court  in 
everything  from  a  divorce  case  to  a  criminal  case  and  probably 
everything  in  between,  and  my  client  was  always  the  utility 

The  divorce  case  happened  when  I  was  the  legal  advisor  to 
the  finance  department.  There  was  an  employee  who  was  in  a 
divorce,  and  his  wife's  attorney  served  an  order  seeking  to 
attach  the  wages  of  this  current  employee,  and  he  did  it  wrong. 
What  had  happened  was,  I  believe  that  the  employee's  wife  was  a 
legal  secretary,  and  she  prepared  the  papers  and  her  boss  just 
signed  them  and  really  didn't  look,  and  she  was  not  aware  of  the 
special  procedures  that  you  then  had  to  follow  to  get  at  the 
wages  of  a  public  employee. 

I  had  to  tell  the  paymaster  he  couldn't  honor  the  order. 
And  so  the  employee's  wife's  boss  took  the  order  down  to  the 
court,  and  the  judge  said,  "What  do  you  mean  East  Bay  MUD's 
lawyer  says  they  won't  honor  this  order  that  I  signed?!   You  get 
him  down  here!"  And  it's  the  only  time  a  judge  ever  used  the 
word  "contempt"  in  relationship  to  anything  that  I  had  done,  but 
that  was  the  threat! 

And  so  here  I  am,  a  young,  green,  wet-behind-the-ears  lawyer 
for  the  utility  district.  Jack  Reilley  accompanied  me.  We 
trotted  on  down  to  the  courthouse  and  went  in  to  see  this  judge, 
and  I  very  patiently  explained  what  the  law  was.   The  judge  by 
this  time  had  looked  it  up  and  understood  it.   We  knew  we  were 
right,  and  he  knew  we  were  right,  and  he  dismissed  us,  and  we 
walked  out.   I  won't  tell  you  the  name  of  the  judge  [smiling]. 
But  I  will  tell  you  that  when  we  walked  out  and  went  around  the 
corner  and  got  in  the  elevator  and  the  doors  closed  and  it  was 
just  me  and  Jack,  he  kind  of  went  off.  And  his  face  got  very 
red,  and  he  said  in  regard  to  that  judge,  "That  supercilious  son 
of  a  bitch!" 

[mutual  laughter] 


Maddow:   And  it  was  a  delightful  moment  for  me  in  hindsight,  although  it 
was  agonizing.  But  that  was  my  divorce  case  that  took  me 

Criminal  Matter  Diverted  to  State  Water  Resources  Control 
Board  ## 

LaBerge:  What  about  the  criminal  law  matter? 

Maddow:   Sometime  in  the  very  late  eighties  or  early  nineties,  I  have 
forgotten  which,  the  district  attorney  of  San  Joaquin  County 
filed  criminal  charges  against  the  board  of  directors,  the 
general  manager,  the  chief  engineer,  and  one  of  the  operators  at 
East  Bay  MUD,  concerning  problems  that  were  being  experienced  by 
fish  down  in  the  hatchery  down  below  Camanche.   The  utility 
district  was  accused  of  allowing  materials  or  placing  materials 
that  were  deleterious  to  fish  in  the  waters  of  the  state,  and 
that ' e  a  crime . 

To  make  a  very  long  story  short,  we  were  instructed  by  the 
board  to  defend  this  case  vigorously.  We  viewed  it  as  kind  of  a 
white  collar  crime  situation,  in  particular  in  view  of  the  way 
that  the  local  district  attorney  was  talking  about  the  case  in 
the  press.   And  it  had  all  kinds  of  potential  overtones  and 
possibilities  for  trouble  with  regard  to  how  Camanche  Reservoir 
operated  and  how  the  fish  hatchery  operated  and  all  of  that. 

So  more  than  anything  else,  the  utility  district  wanted  to 
get  those  criminal  charges  dismissed  so  that,  to  the  extent  there 
were  problems ,  they  could  be  dealt  with  in  some  kind  of  a 
regulatory  proceeding.  To  make  a  series  of  long  stories  short, 
the  utility  district  retained  a  very  fine  white  collar  criminal 
defense  lawyer  named  Jeff  White  from  the  law  firm  of  Orrick 
Herrington  [&  Sutcliffe]  in  San  Francisco.   Jeff  was  then  the 
head  of  the  litigation  department  there,  an  absolutely  first-rate 


We  also  retained  a  local  attorney  in  Stockton,  where  the 
case  was  filed,  a  man  named  Patrick  Piggott.  Patrick  knew  the 
local  rules  and  the  district  attorney's  office  and  the  court  and 
all  that,  and  we  knew  that  we  needed  to  have  a  local  presence  in 
that  case  as  well.  We  very  vigorously  defended  that  case  in  an 
effort  to  avoid  ever  facing  any  criminal  sanctions. 

In  effect,  we  ended  up  getting  the  case  dismissed  and  kind 
of  in  favor  of — it  was  as  though  it  was  diverted  out  of  the 
criminal  law  system  and  over  to  proceedings  related  to  water 
quality  issues  that  would  be  before  the  State  Water  Resources 
Control  Board. 

LaBerge:   Were  you  general  counsel  then? 

Maddow:   I  was  general  counsel  at  the  time.   I  got  directly  involved  in 
„.:  the  litigation  matters.   I  in  effect  served  as  co-counsel  with 
Jeff  White  and  Patrick  Piggott.  Whenever  there  was  a  court 
appearance,  I  was  there.  When  there  were  appearances  before  the 
State  Water  Resources  Control  Board,  I  was  there.   I  probably  did 
as  much  talking  as  any  of  them  did. 

Jeff  White's  role  was  to  be  the  heavy-duty  litigator  on  that 
case,  in  the  event  we  needed  it,  and  we  did  need  their- -they  did 
a  lot  of  writing.   They're  a  very  good  firm,  and  we  used  them 
efficiently  and  effectively  to  try  and  keep  our  board  of 
directors  from  being  faced  with  criminal  charges.   And  I  think  we 
did  so  well. 

But  at  the  same  time,  the  utility  district  didn't  run  from 
the  issues  because  the  issues  related  to  what  was  going  on  in 
Camanche  Reservoir  in  dry  years  (that's  what  was  going  on;  that's 
why  there  was  a  problem)  were  issues  that  needed  to  be  managed 
and  needed  regulatory  oversight,  and  the  utility  district  knew  it 
and  had  in  essence  invited  it. 

We  ended  up  aggressively  pursuing  the  water  resources  and 
water  quality  issues  with  the  regional  board  and  with  the  state 
board  in  particular.  And,  in  view  of  that,  we  ended  up  getting 


the  criminal  charges  dismissed,  without  any  adverse  ramifications 
for  the  utility  district.   It  was  a  lot  of  very  hard  work,  very 
concentrated  work  in  a  short  period  of  time.   It  took  a  lot  of 
legal  time  and  effort.  Two-thirds  of  my  time  for  probably  six 
weeks . 

I  view  it  as  a  success  story  because  not  only  did  we  avoid 
the  awful  consequences  of  seeing  our  top  managers  and  our  board 
facing  criminal  charges,  but  we  straightforwardly  and  quickly 
addressed  the  water  resources  problems  and  the  contamination 
problems,  and  solved  them.  And  did  so  in  a  way  that  the  utility 
district  was  proud  of.   It  wasn't  cheap,  but  the  utility  district 
was  pleased  with  the  result  because  it  learned  a  great  deal  more 
about  what  it  takes  to  manage  its  resources  as  a  result  of  those 

This  is  where  the  buzzard  feather  story  comes  in. 


LaBerge:   Just  tell  me,  too,  how  the  problem  was  solved? 

Maddow:   The  problem  was  solved  through  what  is  basically  a  Camanche 
Reservoir  Management  Plan  that,  among  other  things,  involves 
finding  ways  to  be  sure  that  you  control  the  quality  of  the  water 
that  comes  out  of  the  reservoir  and  goes  into  the  fish  hatchery 
in  order  to  protect  the  hatchery,  and  at  the  same  time  dealing 
with  a  variety  of  related  problems  having  to  do  with  the  storage 
in  Camanche,  the  flow  below  Camanche.   It  eventually  evolved  into 
what  is  known  as  the  Mokelumne  River  Fishery  Management  Plan.   It 
was  one  of  the  themes  that  evolved  into  that  plan. 

The  utility  district  has  built,  for  example,  something 
called  a  Speece  Cone,  which  is  a  form  of,  I  guess  I'd  call  it 
oxygenation  device  to  get  air  and  oxygen  into  the  portions  of  the 
reservoir  that  become  anoxic,  low  oxygen,  toxic  to  fish,  in 


certain  water  quality  conditions  at  the  end  of  many  simmers,  in 
particular  dry  years.  A  lot  of  things  like  that  grew  out  of 
those  efforts. 

The  criminal  case  kind  of  popped  up  in  the  middle  of  those 
efforts  to  deal  with  those  water  quality  matters.   It  wasn't  the 
triggering  event.  If  anything,  it  may  have  intensified  the 
efforts  to  solve  the  problems.   It  did  not  lead  directly  to  any 
aspect  of  the  solution. 

The  buzzard  feather.  At  one  time,  in  order  to  acquaint  Jeff 
White  and  the  lawyer  who  was  working  with  him,  an  associate  named 
Mary  Novak,  to  acquaint  them  with  the  facts  so  that  they  would 
know  what  they  were  writing  about  and  getting  ready  to  argue 
about  in  any  one  of  several  forums,  we  went  out  on  the  site.   We 
actually  were  on  top  of  Camanche  Dam.  We  were  there  with  a  man 
who  at  that  time  was  a  district  employee.  His  name  was  Jeff 
Hagar.   He  was  a  fisheries  biologist. 

And  Jeff  [Hagar]  was  explaining  what  had  happened  to  the 
fish  in  the  hatchery.  We  could  see  the  hatchery  down  to  our 
left .  We  could  see  the  reservoir  off  to  our  right  as  we  stood  on 
top  of  the  dam.   And  Jeff  was  explaining  the  physical  and 
chemical  and  biological  facts.   I  was  explaining,  or  attempting 
to  explain  to  Jeff  White,  sort  of  the  hydrologic  facts  as  I 
understood  them,  with  flows  coming  in  from  Pardee  and  in 
Camanche,  et  cetera. 

Jeff  White  at  one  point  said,  "Well,  let  me  see  if  I  can  say 
some  of  this  back  to  you."   And  he  said,  "As  I  understand  it,  if 
the  facts  are  such  and  so,  we're  not  gonna  have  a  problem.   But 
if  the  facts  are  such  and  so,  there  is  going  to  be  a  problem  down 
in  the  hatchery,  and  if  that's  what  facts  turn  out  to  be,  it 
sounds  like  we're  dead  meat." 

At  that  instant,  a  buzzard  feather  floated  out  of  the  sky 
and  landed  at  my  feet!   I  picked  it  up,  and  I  said  [slowly, 
portentously],  "This  is  an  omen.   I  don't  know  if  it's  good  or 
bad,  but  it's  an  omen,  and  I'm  keepin'  this  1 "   I  guess  it  must 


have  turned  out  to  be  a  good  omen  because  within  a  month  we  had 
gotten  rid  of  the  criminal  charges  and  we  had  gotten  the  case 
diverted  out  of  the  criminal  system,  and  we  were  dealing  with 
these  issues  in  the  regulatory  environment,  and  we  didn't  turn 
out  to  be  dead  meat,  thank  goodness. 

But  it  became  one  of  my  little  mementos.  I  still  have  it  on 
my  desk.   It  sits  over  there  on  my  desk,  with  my  two  spent 
bullets,  one  of  which  I  found  in  my  parking  space  and  one  of 
which  I  found  on  the  steps  of  the  training  center  [chuckling] 
when  I  worked  at  the  utility  district  office  down  on  Adeline 
Street.  We  were  in  what  used  to  be  called  a  "free  fire  zone" 
sometimes  [chuckling] . 

But  fortunately  those  criminal  law  experiences  did  not  have 
serious  consequences  for  the  utility  district.  We  all  learned  a 
lot  about  the  way  the  criminal  law  and  water  resources  interact. 
We  learned  a  lot  about  the  state  board,  the  regional  board 
learned  a  lot  about  it,  and  I  think  the  San  Joaquin  D.A.'s  office 
learned  a  lot  about  it  as  well.   I  think  everybody  walked  away 
from  it- -I  don't  think  anybody  walked  away  too  angry.   I  think  we 
all  thought,  in  the  final  analysis,  the  problem  that  had  led  to 
even  giving  any  thought  to  filing  criminal  charges  was  addressed 
and  a  reasonable  solution  obtained. 

You  told  me  you  wanted  to  talk  about  the  change  in  the 

LaBerge:   Change  in  the  board.  Or,  because  we  only  have  a  little  bit  of 

time  left,  your  overview  of  how  water  rights  law  has  changed.   I 
had  the  thought  that  I  could  add  one  of  the  articles  you  wrote, 
the  family  jewels?   It  is  so  good. 

Maddow:    I  don't  have  much  more  to  say  beyond  that. 
LaBerge:   All  right.   Then  we'll  put  that  in  the  Appendix.1 

JSee  Appendix,  "Dramatic  Changes  in  Water  Rights  Law  Over  the  Past 
Couple  of  Decades—A  Statewide  Perspective." 

Vision  Comes  from  Board  of  Directors  or  General  Manager? 

Maddow:   Let  me  talk  about  the  board.  And  this  is  one  man's  perspective. 
I  don't  know  if  you'll  be  able  to  use  it.  It's  not  really  legal 
in  nature;  it's  more  public  policy  observation  from  the 
standpoint  of  somebody  who  sat  in  a  particular  seat.   I  sat  in 
there  for  twenty  years. 

I  talked  about  what  the  utility  district  board  was  like  when 
it  was  five  members  elected  at  large.  That  was  a  board  that 
focused  on  the  broad  policy  issues.  They  all  looked  at  the  whole 
district,  and  many  times,  the  vision  for  where  the  district  was 
headed  would  come  from  the  board  in  those  days.   But  at  the  same 
time,  this  was  a  board  that  recognized  that  under  the  Municipal 
Utility  District  Act  [1921],  the  general  manager  is  supposed  to 
be  the  chief  executive  and  has  very  strong  powers,  in  some 
respect  on  a  par  with  those  of  a  city  manager  in  a  strong  city 
manager  form  of  government.   In  some  respects  maybe  even  a  little 
stronger  than  that. 

Well,  as  the  board  changed  with  the  move  to  ward-by-ward 
elections,  and  as  local  politics  became  much  more  a  feature  of 
what  was  going  on  at  East  Bay,  I  think  it  was  very  interesting 
that  the  board  in  1981  turned  to  Jerry  Gilbert  to  be  the  general 
manager.   He  was  a  very  experienced  person  who  came  to  the 
district  from  having  been  the  executive  director  of  the  State 
Water  Resources  Control  Board,  having  been  the  president  of  the 
American  Waterworks  Association.   He  had  a  broad  view  of  things. 
He  was  capable  of  developing  a  vision  of  what  the  utility  was  and 
could  be. 

And  that  was  very  much  what  Jerry's  term  as  general  manager 
for  almost  ten  years  consisted  of.   He  had  a  board  which  had  some 
very  strong  thinkers  on  it.  They  didn't  always  agree  with  one 
another,  but  they  were  capable  of  addressing  the  policy  issues 
very  effectively.  And  having  that  kind  of  a  board  and  having 
Jerry,  who  was  able  to  create  and  present  to  them  a  vision,  for 
them  to  then  apply  their  policy  thinking- -you  may  not  like  what 


his  vision  was,  you  may  not  have  liked  what  the  results  were,  et 
cetera,  but  it  was  a  system  that  worked,  and  we  got  a  lot  done  in 
what  could  have  been  some  tough  times.  We  didn't  always  succeed, 
but  we  got  a  lot  done,  and  there  were  some,  I  think,  significant 
efforts  made  to  contribute  to  the  long-term  picture  that  the 
utility  district  needed  to  focus  on. 

At  the  time  Jerry  left  there  was  a  significant  change  in  the 
board  as  a  result  of  the  election  in  1990.  And  this  is  not  meant 
to  be  a  commentary  on  the  pre-1990  board  or  the  post- 1990  board 
from  a  political  standpoint  or  from  a  personality  standpoint. 
It's  meant  to  be  from  a  policy  standpoint.  The  board  that  came 
in  in  1990  wanted  it  to  be  the  board  that  created  a  vision.   It 
didn't  want  the  manager  to  create  a  vision.   It  wanted  the  vision 
of  what  the  district  was  in  1990  and  could  become—or  in  1991, 
when  they  took  office—they  wanted  that  to  flow  more  from  the 

It  was  a  board  that  was  split.   They  didn't  have  a  unanimous 
board  in  regard  to  what  that  board's  vision,  or  the  majority  of 
the  board's  vision  was  on  what  the  utility  district  ought  to  be. 
So  it  was  a  somewhat  tumultuous  time,  I  think,  for  that  board. 
The  issues  that  the  district  was  facing  were  the  same.   The 
policy  matters  the  board  had  to  deal  with  were  the  same.  They 
had  a  different  perspective.   Many  of  the  issues  that  the  board 
had  to  deal  with  were  hangovers  from  the  previous  period.   But  to 
the  extent  a  new  vision  was  being  developed  and  shaped,  and  the 
policies  of  the  district  and  the  programs  of  the  district  flowed 
from  that  vision,  it  didn't  come  from  the  manager  anymore.   It 
came  from  the  board. 

The  particular  board  member  who  was  probably  principally 
responsible  for  that  vision  only  stayed  on  the  board  for  one 
term,  then  chose  not  to  run  for  reelection.  And  two  of  the— 

LaBerge:  Andy  Cohen? 

Maddow:   His  name  was  Andrew  Cohen.   He  was  the  director  from  here  in 

Berkeley.   He  had  succeeded  Helen  Burke,  who  was  the  first  of  the 


real  strongly  committed  environmentalists  to  serve  on  the 
district's  board.   I've  talked  about  her  before.  I  have  an 
enormous  amount  of  respect  for  her.  I  have  an  enormous  amount  of 
respect  for  Andy  Cohen.  Andy  provided  most  of  the  vision  for  the 
period  of  time  when  he  served  on  the  board.   And  he  was  effective 
in  what  he  was  trying  to  do.  But,  again,  he  brought  in — the 
district  was  reorganized  so  that  it  was  much  less  likely  to  have 
a  staff  that  was  going  to  throw  off  new  vision  statements  or 
create  new  programs  independently.  Perhaps  the  most  symbolic 
change  was  abolition  of  the  position  of  Chief  Engineer. 

That  role,  staff's  role,  in  that  respect  was  kind  of 
downgraded  and  pushed  down.  And  that's  okay.   I  mean,  that's  not 
the  only  organization  that  does  that  sort  of  thing.   But  when. 
Andy  Cohen  left  the  board  after  one  term,  I  don't  think  he 
expected  that  two  of  the  people  who  had  been  elected  when  he  was 
elected  were  going  to  lose  in  the  next  election. 

And  the  result  was  when  Andy  left,  taking  his  version  of  the 
district's  vision  with  him,  and  when  those  other  directors  who 
had  supported  Andy  got  voted  out  of  office^  you  had  a  new  board, 
a  board  that  was  not  entirely  in  sync  with  the  vision  that  Andy 
had  had.   The  person  who  had  been  brought  in  to  manage  the 
district  under  the  board  when  Andy  was  on  it  and  when  Andy  was 
the  vision  producer,  and  the  organization  that  he  had  created  to 
run  the  district  under  that,  that  all  changed.   For  a  whole 
variety  of  reasons,  but  that  all  changed. 

The  manager  left.   A  new  manager  was  selected.   It  was 
Dennis  Diemer,  who  had  been  hired  by  Wally  Bishop  to  work  in  the 
wastewater  department  and  who  would  later  become  a  very  effective 
assistant  chief  engineer  in  the  water  system.   Now  we're  at  a 
point  where  I  don't  know  where  in  EBMUD's  organization  the  vision 
comes  from.   I'm  too  far  removed  to  know,  but  what  I  observed  in 
my  tenure  was  that—in  the  time  I  was  there,  where  the  district 
was  headed,  what  its  policies  were  going  to  be,  what  its  programs 
were  going  to  be,  usually  flowed  from  this  sort  of  central  focus 
that  either  came  from  the  board,  back  in  the  old  days,  that  was  a 
different  kind  of  board;  or  a  general  manager  who  had  a  strong 


board  around  him  but  who  was  a  real  visionary;  or  it  came  from  an 
individual  board  member  from  within  the  majority  group  of  the 

And  then,  in  1994,  you  had  a  new  election,  and  I  don't  know 
where  the  vision  comes  from  anymore.  That's  not  meant  to  be 
critical  of  the  present  board  or  the  general  manager  or  the 
staff.   I'm  just  not  down  there,  and  I  don't  know  who  does  it. 
But,  to  me,  one  of  the  things  I  learned  over  twenty  years  is  that 
what  the  organization  is  doing,  how  it's  trying  to  accomplish  its 
objectives,  starts  with  some  of  that.  And  if  you  don't  have  it, 
if  you  don't  have  it  clearly  defined,  you  can  drift  a  little  bit. 

The  utility  district  built  a  hell  of  a  water  supply  project 
in  the  twenties.   It  built  a  hell  of  a  project  in  the  forties. 
It  built  a  hell  of  a  project  in  the  sixties.   It  hasn't  built 
anything  since.  And  it  needs  to  because  it's  out  of  water  (in 
terms  of  safe  yield),  and  it's  facing  a  declining  level  of 
security  because  the  "family  jewels  are  made  of  paste,"  because 
it's  got  the  FERC  and  the  State  Water  Resources  Control  Board 
having  taken  under  advisement  decisions  that  could  result  in 
changing  the  productivity  of  their  water  rights,  and  they're  sure 
not  going  to  change  them  upward. 

The  utility  district  needs  to  move,  and  they're  certainly 
trying  to  do  so,  and  I  give  them  a  lot  of  credit  for  that.   I 
don't  know  enough  about  what  they're  doing  to  know  whether  it's 
going  to  succeed.   I  hope  it  does.   But  I  hope  that  they  have  the 
ability  to  take  the  long  view,  like  the  people  did  in  the 
twenties  and  in  the  forties  and  in  the  sixties .   What  they  did 
back  then  was  to  not  only  build  a  system  but  they  built  it  for 
the  ages.   They  built  a  system  that  was  big  enough  so  that  the 
system  they  built  in  the  1920s  lasted  through  World  War  II. 
That's  all  the  district  had. 

And  what  it  did  was  to  serve  Vallejo  and  Treasure  Island 
and--San  Francisco  started  its  system  before  East  Bay  did,  but 
East  Bay  finished  first  and  served  water  to  San  Francisco  in  the 


thirties,  because  East  Bay  had  built  a  system  that  was  big  and 
flexible  and  capable. 

The  same  is  true  of  the  second  barrel  of  the  aqueduct  in  the 
forties,  and  the  same  is  true  of  Camanche  and  the  third  barrel  of 
the  aqueduct  in  the  sixties.   If  it  hadn't  been  for  that,  we 
wouldn't  have  been  able  to  come  up  with  the  solutions  we  did  for 
the  drought  in  that  big  thing  that  we  talked  about  that  was  done 
for  all  those  many  agencies  in  the  seventies. 

Those  systems,  those  facilities  are  probably  reaching  their 
limit  in  terms  of  how  much  flexibility  is  left  in  them,  whether 
or  not  they're  going  to  supply  the  long-term  needs,  whether  or 
not  they  can  protect  the  quality  of  water  the  district  wants  to 
serve.   Now  the  district  has  to  face  a  whole  new  era  of  water 
treatment  challenges  and  water  quality  challenges  that  are 
different  from  what  we  had  before.  And  it's  doing  so  in  a  time 
when  I  think  the  security  of  their  water  supply  is  perhaps  more 
in  jeopardy  than  it  was  during  the  time  that  I  was  there. 

And  whether  or  not  they'll  have  the  degree  of  security  that 
they  need  and  have  always  enjoyed  in  the  past  is  going  to  depend 
in  large  part  on  what  happens  in  forums  over  which  they  have  less 
control  than  they  used  to  have.  And  so  the  result  is  that 
there's  a  real  test  here  of  the  policy  makers  and  the  people  who 
run  the  district  in  terms  of  trying  to  accomplish  things  on  the 
scale  of  what  was  done  in  the  twenties,  forties,  and  sixties,  in 
this  period  of  the  nineties  and  the  new  millennium.   And  that's  a 
real  severe  test.   I  wish  them  all  the  luck  and  success  in  the 
world.   I  just  hope  that  they  have  a  broad  enough  vision  of  it  to 
be  able  to  understand  what  they're  getting  into. 

I  was  really  encouraged  the  other  day.   I  was  at  a  meeting 
there  representing  another  client.  The  meeting  just  happened  to 
be  taking  place  in  the  East  Bay  building.   We  were  in  a  meeting 
room,  a  conference  room,  and  there  was  a  briefcase  sitting  in 
there,  and  there  was  a  jacket  on  the  back  of  a  chair,  and  they 
were  just  there—they  did  not  belong  to  anyone  at  the  meeting  I 
was  attending.   Lo  and  behold,  they  turned  out  to  be  Art 


Littleworth's.  They  are  using  him  again  to  assist  them  in  regard 
to  the  American  River  stuff.  And  I  say,  "Great."  If  that's  what 
this  board  and  Bob  Helwick  and  Dennis  Diemer  have  done ,  that ' s 
ideal  because  he's  just  as  good  as  they  come,  and  I  respect  him 
and  I  know  they  value  his  advice,  and  that  will  be  good  stuff. 

That's  my  speech. 

Decision  to  Enter  Private  Practice 

LaBerge:  Okay.  Well,  in  one  minute,  can  you  tell  me  why  you  decided  to  go 
into  private  practice? 

Maddow:   Yes.   I  was  becoming  too  much  a  part  of  the  administration  of  the 
district  and  not  enough  its  lawyer.   In  part  because  with  the 
changes  that  went  on  as  a  result  of  the  1990  election- -and, 
again,  this  is  not  a  focus  on  the  election;  it's  just  the 
evolution  of  the  utility.  A  number  of  people  had  left  the 
district- -Jerry  Gilbert,  Ted  Way,  people  who  had  been  there  for  a 
long  time.  We  had  a  change  in  the  board.  The  leadership  that 
came  in  with  the  new  board  wasn't  interested  in  what  had  happened 
with  the  old  board,  and  yet  they  knew  that  they  had  to  understand 
some  things,  there  had  to  be  some  continuity.   And  I  became 
sometimes  one  of  the  sources  through  which  they  tried  to  learn 
what  some  of  the  past  had  been. 

So  I  found  myself  spending  a  lot  of  time  sort  of  being  the 
institutional  memory  and  the  keeper  of  the  corporate  history  and 
all  that .   And  that ' s  fine ,  but  I  kept  having  to  do  it .   And 
then,  you  know,  a  new  general  manager  came  along.   I  really  liked 
the  man,  but  I  ended  up  having  to  do  a  lot  of  that  with  him. 

LaBerge:   Is  this  Mr.  Jorge  Carrasco?  , 

Maddow:   Yes.  And  then,  once  it  came  time  for  him  to  reorganize  the 

district,  I  was  asked  to  get  involved  in  helping  to  brief  the 


consultant  who  was  doing  the  reorganization.   Actually,  I  guess  I 
kind  of  had  a  hand  in  selecting  that  consultant  because  I  wanted 
to  be  sure  they  picked  a  firm  that  knew  something  about  municipal 
utility  districts,  and  they  did.  They  picked  a  good  firm. 

And  I  got  asked  to  help  brief  the  guy  who  did  the  study,  and 
I  did.   I  spent  a  lot  of  time  doing  that.  They  came  out  with 
some  recommendations  that,  had  I  been  the  general  manager  I 
wouldn't  have  done  it  that  way,  but  I  wasn't  the  general  manager, 
so  what  I  thought  and  what  I  think  now  doesn't  count.   In  fact,  I 
didn't  like  the  organizational  change  that  was  happening,  and 
that  was  a  concern  to  me. 

And  lo  and  behold,  as  it  began  to  unfold,  I  found  myself 
heading  down  the  road  of  becoming  the  institutional  memory  and 
the  corporate  history  for  the  newly  hired  people.   I  had  done  a 
lot  of  that.   In  mid  1992  I  was  asked  if  I  wanted  to  go  down  and 
became  the  general  counsel  of  the  Metropolitan  Water  District 
when  Mr.  Vendig  retired.   I  had  been  offered  that  job  in  1988  and 
turned  it  down,  and  they  asked  me  if  I  had  changed  my  mind  in 
"92,  and  I  thought  about  it,  and  I  said  no. 

But  then,  in  the  winter  of  '92,  on  the  day  after  Christmas, 
I  was  in  England.  My  daughter  was  at  the  London  School  of 
Economics,  and  we  went  over  to  spend  Christmas  with  her.  And  the 
day  after  Christmas  I  took  a  long  walk  on  a  cold,  cold  day,  down 
along  the  Thames  and  up  through  Chelsea.   I  kind  of  came  to  peace 
with  myself  and  said,  you  know,  I'm  really  not  enjoying  what  I'm 
doing  as  much  as  I  think  I  should  be  right  at  age,  whatever  I 
was,  49.   And  if  a  pure  legal  position  comes  along  that  will 
allow  me  to  not  have  to  relocate  to  southern  California,  I'll 
consider  it. 

Well,  a  week  thereafter,  I  got  a  call  from  Jeff  Polisner  out 
in  Walnut  Creek,  who  told  me  that  Fred  Bold,  who  had  been 
practicing  water  law  in  Contra  Costa  County  for  forty  years ,  had 
decided  to  retire  as  his  eightieth  birthday  had  just  approached. 
And  would  I  be  interested  in  taking  over  his  practice?  It 
instantly  intrigued  me,  and  I  gave  it  a  lot  of  thought  for  a 


month,  almost  a  month.   It  was  December  26  that  I  took  a  walk 
with  myself.   It  was  January  3  when  Jeff  called  me.  And  it  was 
February  1  when  I  told  my  staff  that  I  decided  to  leave. 

It  didn't  have  anything  to  do  with  "the  board"  or  "the 
management"  or  "the  district."  What  it  had  to  do  with  in  a  sense 
was  all  of  those  things,  but  mainly  it  was  me  facing  a  sort  of  a 
career  choice  at  age  49.  Do  I  want  to  keep  on  doing  what  I'm 
doing?  At  that  point — it  hadn't  always  been  the  case,  but  at 
that  point,  I  was  working,  I  believe,  very  successfully  with  that 
board  and  with  that  manager,  and  I  was  not  at  cross  purposes  with 
any  of  them.  And,  frankly,  I  think  I  could  have  stayed  and  still 
been  there  now  and  continue  to  have  what  I  would  consider  to  be  a 
successful  career. 

But  I  didn't  want  to  do  it  anymore.   I  was  ready  to  do 
something  else,  and  I'm  glad  I  made  the  change.   I  think  it  was 
healthy  for  me,  and  I  think  it  was  healthy  for  the  utility 
district.   Bob  Helwick  is  now  doing  a  great  job  as  general 
counsel,  I  suspect.   He's  ideally  situated  for  what  they  need  at 
this  point. 

Transcribers:   Shannon  Page,  Him  Eisenberg 
Final  Typist:   Shana  Chen 


TAPE  GUIDE--Robert  B.  Maddow 

Interview  1:  February  3,  1997 
Tape  1,  Side  A 
Tape  1,  Side  B 
Tape  2,  Side  A 
Tape  2,  Side  B 

Interview  2:  February  17,  1997 

Tape  3,  Side  A 

Tape  3,  Side  B 

Tape  4,  Side  A 

Tape  4,  Side  B 

Interview  3:  March  7,  1997 

Tape  5,  Side  A 

Tape  5,  Side  B 

Tape  6,  Side  A 

Tape  6,  Side  B 

Interview  4:  March  27,  1997 

Tape  7,  Side  A 

Tape  7,  Side  B 

Tape  8,  Side  A 

Tape  8,  Side  B 






Interview  5:   May  23,  1997 
Tape  9,  Side  A 
insert  from  Tape  10,  Side  A 
resume  Tape  9,  Side  A 
Tape  9,  Side  B 
Tape  10,  Side  A 

Interview  6:   June  18,  1997 

insert  from  Tape  10,  Side  A  [5/23/97J 
Tape  11,  Side  A 




Tape  11,  Side  B 
Tape  12,  Side  A 



APPEND IX- -Robert  B.  Maddow 

A.  COMMITTEE  TO  SAVE  MOKELUMNE  RIVER,  Plaintiff -Appellee  v.  EAST  BAY 
MUNICIPAL  UTILITY  DISTRICT,  et.  al. ,  Defendants -Appelants.   No. 
93-15999.  United  States  Court  of  Appeals,  Ninth  Circuit.  Argued 
and  Submitted  Sept.  1,  1993. 

Decided  Dec.  28,  1993  283 

B.  Add  Water  Code  Section  10001. A — a  memorandum  signed  by  Robert  B. 
Maddow  and  Senator  Leroy  Greene  289 

C.  Senate  Bill  No.  2458:  An  act  to  add  Section  10001.7  to  the  Water 
Code,  relating  to  water  resources,  February  21,  1986  290 

D.  Maddow,  Robert  B.  "Dramatic  Changes  in  Water  Rights  Law  over 
the  Past  Couple  of  Decades  --  A  Statewide  Perspective,"  or  "The 
Family  Jewels  Are  Made  of  Paste."  292 




Cite  Mil  FJd  JO?  (9th  Clr.  IW) 

*  cfltion  of  the  appropriate  authority  are  re- 
Lceived  by.  the  district  court"  United  States 
ti:  •  Juvenile  Male, '  923  F2d  614,  620  (8th 
-oCir.1991).  See  aUo  United  States  v.  M.I.M.. 
-•$32  F.2d  1016,  1019  (1st  Cir.1991)  (dismissing 
.case  for  lack  of  jurisdiction  due  to  clear 
.'"directive  of  section  6032  that  no  proceedings 
;•  against  a  juvenile  can  commence  until  the 
v*  court  receives  at  least  a  good  faith  proffer  of 
'-the; 'juvenile  records  or  a  certificate  as  to 
c  their  absence);  United  States  v.  Brian  N., 
•-900  F.2d  at  221  (same). 

•''Because  the  jurisdictional  requirements  of 
section  6032  were  not  met,  we  vacate  the 
adjudication  of  delinquent  status.  The  case 
is  remanded  to  the  district  court  with  in 
structions  to  dismiss  the  information  without 
'prejudice.  '.'•.•.:  •!  '  •';'•• 


lo  |inNUM(ucmtM> 

-       T.-p-f.j-   .";    ' 
I    •  V      *>' 

.      RIVER,-  a  California  non-profit 
.  -    corporation,  Plaintiff-Appellee;  <• 

'I.'.    ," 

i    .t*If.'    '-' 


TRICT,  a,  California,  Municipal  Utility 
District,  et  al.,  Defendants-Appellants. 

»!,••  .      tf  No.  93-15999.  fSn'-Jf'i.'' 

'  :''Urited/i^tJM''dourt  of,  Appeals,' 
'     "Ninth'  Circuit 

•*.       •         '-iht"  !  •'  it  i  •.•     .      ••       . 

Argued  and  >  Submitted  Sept  1,  1993. 

b        bedded  Dec,'  29,  1993. 
V?}    >•-'•';.. .    .».'•••  •'  >    •••  •  f 

Environmental  ferbup  brought  Clean 
«r  Act  action  against  municipal  utility 
net  and  members'  of  regional  water  quali- 
'  ontrol  board,  which  'owned  and  operated 
idoned  mine  facility,  alleging  that  facility 
fnarged'pbllutantB'with'out  National  Pollu- 
nDischarge  Elimination  System  (NPDES) 
3»iL  The  United  i  States  District  Court 
Eastern  District  of  California,  Law- 

rence  K.  Rarlton,  J.,  found  that  defendants 
discharged  pollutants  into  reservoir  and  river 
without  permit  in  violation  of  Act.  Defen 
dants  appealed.  The  Court  of  Appeals,  Pre- 
gerson,  Circuit  Judge,  held  that  dam  used  to 
collect  acid  mine  drainage  from  abandoned 
mine  site  was  subject  to  Clean  Water  Act's 
permit  requirements. 


Fernandez,  Circuit  Judge,  filed  a  concur 
ring  opinion. 

1.  Health  and  Environment  e=25.7(13.1) 

To  establish  violation  of  Clean  Water 
Act's  National  Pollutant  Discharge  Elimina 
tion  System  (NPDES)  requirements,  plaintiff 
must  prove  that  defendants  discharged,  i.e., 
added  a  pollutant  to  navigable  waters,  from  a 
point  source.  Water  Pollution  Control  Act 
Amendments  of  1972,  §  301(a),  33  U.S.CA 
5  131  l(a). 

2.  Health  and  Environment  ©=25.7(13.1) 

Dam  used  to  collect  acid  mine  drainage 
from  abandoned  mine  site  was  subject  to 
Clean  Water  Act's  National  Pollutant  Dis 
charge  Elimination  System  (NPDES)  permit 
requirement;  admission  that  drainage  was 
collected  in  dam  reservoir  and,  from  time  to 
time,  passed  over  spillway  or  through  a  valve 
into  river  and  another  reservoir  conclusively 
established  discharge  of  pollutant  from  mine 
facility  within  meaning  of  Act  Federal  Wa 
ter  Pollution  Control  Amendments  of  1972, 
§  301(a),  83  UJS.CA  S  i811(a). 

t      '  i 

3.  Federal  Civil  Procedure  «=2-(81 

Factual  issue  raised  by  owners  and  op 
erators  of  abandoned  mine  facility  concern 
ing  historical  level  of  pollution  compared  to 
current  level  of  pollution  emanating  from 
facility  wan  not  material  to  resolution  of 
Clean  Water  Act  claim  that  owners  and  oper 
ators  were  discharging  pollutants  into  reser 
voir  and  river  without  National  Pollutant 
Discharge  Elimination  System  (NPDES) 
permit  in  violation  of  Clean  Water  Act  and, 
therefore,  any  question  as  to  that  issue  did 
not  preclude  summary  judgment  on  issue  of 
liability.  Federal  Water  Pollution  Control 



Act  Amendments  of  1972,  §§  301(a),  402(a), 
33  U.S.CA  §§  1311(a),  1342(a). 

4.  Health  and  Environment  e=25.7(23) 

.  .  i  Municipal  .utility  district  and  regional 
water  quality  control  board  could  be  held 
liable  under. Clean  Water  Act  given  the  ab 
sence  of  any  statutory  authority  to  exempt 
board  or  district  from  liability  under  the  Act. 
Federal  Water  Pollution  Control  Act  Amend 
ments  .  of  1972,  §§  101-517,  33  U.S.CA 
§§  1251-1376. 

5.  Federal  Courts  «=272 

Eleventh  Amendment  did  not  bar  pro 
spective  equitable  relief  which  environmental 

i  group  sought  in  Clean  Water  Act  action 
•  brought  against  municipal  utility  district  and 

•  'regional  •  water  quality '  ;  control  board. 
U.&CA  Const-Amend.  .11;  Federal  Water 
Pollution  Control  Act  Amendments  of  1972, 
§§  101-617,  33  U.S.CJL  §§  1251-1376. 

Edward  Berlin,  Swidler  &  Berlin,  Wash 
ington;  DC,  for  defendant-appellant  East  Bay 
)(Mun.  ^Utility.  Dist. 

>t   Sara  J.  Drake,  Deputy 'Atty.  Gen.,  Atty. 
General's  Office,  Sacramento,  CA,  for  defen 
dant-appellant  California  Water  Quality  Con 
trol  Bd.  Members,,. Central  Valley  Region. 

"!  Adria  Y.  LkRose,  William  S.  CurUss,  Sier- 
'ra'Cflub' Legal  Defense  Fund,  Inc.,  Maria 
'Savasta'iKerinedy,  Michael  W.  Bien,  Rosen, 
•Bien'&^Asaro,  SaJh  Frariciaco,  CA,  for  plain- 
-'ffif-appellee.  '  '  '" 

;".'         !  .    .-.   -,-.,'        .  ,.  .'.     .,.  '-,     . 

•   Appeal  from;  the..  United  States  District 
Court  for  the  Eastern  District  of  California. 

V         i'  •      '  .  ' 

,  .Before: ,  REAVLEY,"  PREGERSON,  and 
.FERNANDEZ,  Circuit,  Judges. 

'.';'.  PREGERSON,  Circuit  Judge: 

:  .   The  East  Bay  Municipal ,  Utility  District 

and  the  members  of  the  California  Regional 

Water  Quality  Control  Board,  Central  Valley 

Region,  defendants  below,  appeal  the  district 

iicpurtifl  .order  .granting  partial  summary  judg- 

.|ment;in  favor/ of.  the*  Committee  to  Save  the 

ht' HonTThomas  'M.  Reavky,  United  State*1  Circuit 
6f  Aftxlab  for 'the  Fifth  Cir- 

Mokelumne  River.  The  district  court,  in  a 
well-written,  well-reasoned  opinion,  found 
that  defendants  owned  and  operated  the 
Penn  Mine  facility,  and  that  the  facility  dis 
charged  pollutants  into  the  Camanche  Reser 
voir  and  Mokelumne  River  without  a  permit, 
in  violation  of  the  Clean  Water  Act,  33  U.S.C. 
§§  1251-1376.  On  appeal,  defendants  con 
tend  that  (1)  Mine  Run  Dam,  part  of  the 
Penn  Mine  facility,  is  not  subject  to  the 
discharge  permit  requirements  of  the  Clean 
Water  Act;  (2)  the  Water  Board  is  immune 
from  liability  under  the  Act;  and  (3)  sum 
mary  judgment  was  improper  because  a  tri 
able  issue  of  material  fact  exists  whether 
there  has  been  an  "addition  of  pollutants" 
within  the  meaning  of  the  Clean  Water  Act. 

We  'have  jurisdiction  under  28  U.S.C. 
§  1292(b).  We  affirm. 


The  Penn  Mine  property  is  the  site  of  an 
abandoned  copper  and  zinc  mine  that  operat 
ed  intermittently  from  the  1860s  through  the 
1950s.  The  companies  that  mined  the  site 
left  behind  reactive  mine  tailings,  waste  rock, 
and'  excavated  ores.  When  exposed  to  oxy 
gen  and  water,  these  materials '.form  "acid 
mine 'drainage,"  which  contains  high  concen 
trations  of  aluminum,  cadmium,  copper,  zinc, 
iron,  and  sulfuric  acid.  Unless  impeded,  rain 
water  falling 'on  the  site  carries  this  acid 
mine  drainage  downhill,  in  the  form1  of  sur 
face  runoff,  irito  the  Mokelumne  River.' 

In  the  1960s,  the  East  Bay  Municipal  Utili 
ty  District  (the  "District")  acquired  a  portion 
of  the  Penn  Mine  property  to  build  the  Cam 
anche  Reservoir.  The  District  owns  water 
rights 'on  the  Mokelumne  and  supplies  water 
to  towns  and  cities  east  of  San  Francisco.  In 
1978,  the  District,  joined  by  the  California 
Regional  Water  Quality  Control  Board,  Cen 
tral  'Valley  Region  (the  "Board"),  constructed 
the  Penn  Mine  Facility  (the  "facility")  In  an 
attempt  to  reduce  the  threat  of  continued 
toxic  runoff  from  the  site.  The  facility  con 
sists  of  Mine  Run  Dam  and  the  Mine  Run 
Dam  Reservoir,  surface  impoundment,  along 

'(  I    '     '  >  .  •}»!••' 

ciilt,  sitting  by  designation. 



ClleulJ  FJd  305  (9lhClr.  1991) 

Act  prohibits  the  "discharge  of  any  pollutant" 
into  navigable  waters  from  any  "point 
source"  without  a  permit  See  33  U.S.C. 
S  131  l(a)  (except  as  otherwise  provided  in 
the  Act,  the  discharge  of  any  pollutant  by 
any  person  shall  by  unlawful);  $  1342(a)  (au 
thorizes  EPA  Administrator  to  permit  some 
discharges  of  pollutants  under  a  National 
Pollutant  Discharge  Elimination  System 
("NPDES")); '  §  1362(12)  (defines  "discharge 
of  a  pollutant"  as  "any  addition  of  any  pollu 
tant  to  navigable  waters  from  any  point 

The  Committee  to  Save  the  Mokelumne 
River  (the  "Committee")  initiated  this  suit 
against  the  District  and  members  of  the 
Board  under  the  citizen  suit  provisions  of  the 
Act  33  U.S.C.  §  1365.  The  Committee  seeks 
a  judgment  declaring  that  defendants  have 
discharged  pollutants  from  the  Penn  Mine 
facility  without  a  permit  in  violation  of  the 
Vater  Act  and  enjoining  defendants 
discharging  pollutants  from  the  facility 
until  they  have  obtained  an  NPDES  permit 
to  do  so.  The  Committee  also  seeks  ah  order 
requiring  defendants  to  devise  a  remedial 
plan  to  remove  and  dispose  of  contaminated 
sediment  in  the  reservoir. 

Defendants  moved  to  dismiss  this  action  on 
a  number  of  procedural  and  substantive 
grounds.  At  the  same  time,  the  Committee 
moved  for  summary  judgment  on  the  issue  of 
defendants'  liability  under  the  Act  The  dis 
trict  court  denied  defendants'  motion  and 
granted  judgment  in  favor  of  the  Committee 
on  the  issue  of  liability. 

On  appeal  from  the  district  court's  order  of 
summary  judgment  in  favor  of  the  Commit 
tee,  defendants  raise  four  issues.  They  con 
tend  that  the  district  court  erred  in  granting 
partial  summary  judgment  in  favor  of  the 
Committee  because  (1)  Mine  Run  Dam  is  not 
subject  to  the  discharge  permit  requirements 
of  the  Clean  Water  Act;  (2)  a  material  issue 
of  fact  exists  as  to  whether  defendants  have 
"discharged  a  pollutant",  within  the  meaning 
of  the 'Act;  (8)  defendants'  activities  in  con 
structing  and  operating  the  facility  are  regu 
latory,  and  therefore  cannot  constitute  "addi 
tions  of  pollutants"  under  the  Act;  (4)  the 
Eleventh  Amendment  immunizes  defendants 

^series  of  other  impoundments;  drain- 
itches,  pipes,  valves,  culverts,  and  chan- 
Mine  Run  Dam  and  most  of  the 
pRun  Dam   Reservoir  are  located  on 
owned  by  the  District     A  small 
on  of  the  Mine  Run  Dam  Reservoir  ex- 
dsionto  property  owned  by  a  defunct  min- 

^'facility  was  designed  to  capture  con- 
ifed' surface  water  flowing  through  the 
i  find '  to  contain  and  evaporate  the  water 
lughia  ponding  and  recirculation  system, 
llgreventing  the  contamination  from  reaching 
reservoir  and  river  below.    Each  of  the 
"drainages  once  occupied  by  Hinkley  Run 
Mitie  Run  creeks,  which  formerly  flowed 
ugh  the  site,  now  contains  a  cascade  of 
^impoundments.    Water  contaminated 
ith  toxic  pollutants  runs  off  the  mine  site 
T  collects  in  the  upper  impoundments  and 
fen  flows  to  the  lower  impoundments,  even- 
." •  tuaily  collecting  in  the  Mine  Run  Dam  Reser- 
°voirV ' 'A  pump  and  pipe  owned  by  the  Board 
fireSrculales  polluted  water  from  Mine  Run 
*-panf  Reservoir  back  into  the  upper  impound- 
^melfts'  located 'in  the  former  Mine  Run  Creek 
£f3ra!nage""basin.     Defendants  operate   that 
,,v9£ufnp'.''v'''  : ! 

I  -^0Tne :  facility  also  consists  of  two  principal 
jttverBio'n^ ditches  that  divert  the  surface 
^flows  of  ttinkley  Run  and  Mine  Run  creeks 
'around  the  abandoned  niine  site.  Those  di 
version  ditches  are  intended  to  isolate  the 
jf ability :ifrom. .the  unpolluted  flows  of  these 
fjttra \creekB,  .by.  diverting  the  streams  around 
v&e^adjity  and  directly  into  the  Mokelumne 
TRiyer,an^,,Canianche,  Reservoir,  below. 

•  •^/As/part of  the  facility's  ongoing  operation, 
•ivarMis  pipes,  channels,  and  gullies  carry  pol- 

•  luted,  runoff  from  the  mine  tailings  and  dikes 

•  .iiitjpHe'  Mine  Run  Dam  Reservoir  and  other 
nfamty.  impoundments.     In   addition,   from 

timelto  time,  water  and  drainage  collected  in 
the 'Mine  Run  Dam  Reservoir  have  passed 
through  the  dam's  die- 
valve  into  the  Mokelumne  River  and 

,6,.     ean   \Yater  Act   (the  "Act"),   33 
U.S.d  §1.^1-1876,'  is  intended  to  "restore 
{ and  :niaintain  the  .chemical,  physical,  and  bio- 
integrity^of  the  Nation's  waters."   33 
.1  §  1261  (a): '  In  pursuit  of  this  goal,  the 





from  liability  under  the  Clean  Water  Act 
We  address  each  of  these  arguments  in  turn. 

.    -    DISCUSSION 

A.    7s  Mine  Run  Dam  subject  to  the  Clean 
Water  Ad's'perihit  requireinentsf 

.  [1, 2]  to  establish  a  violation  of  the  Act's 
NPDES  requirements,  a  plaintiff  must  prove 
that  defendants  ,(1)  discharged,  Le.,  added  (2) 
a  pollutant  (3)  to  navigable  waters  (4)  from 
(5)  a  point  source.  National  Wildlife  Feder 
ation  v.  Gorsuch,  693  F.2d  156,  166  (D.C.Cir. 
1982).  Defendants  concede  that  acid  mine 
drainage  is  a  "pollutant,"  that  the  Mokel- 
umne  River  is  among  the  covered  "navigable 
'waters,"  and  that  the  spillway  and  valve  of 
the  Mine  Run  Dam  and  Reservoir  are  "point 
stturces" '  from'  which  polluted  water  has  en 
tered  the' Mokelumne  River.  They  contest 
only  tHe1  'issiie  whether  they  have  "added" 
pollutants'  'to  the  Mokelumne. 

,;••'   ••  .       !••';(.      .  •• 

Defendants  argue  that  under  well-estab 
lished  c-ase  law,  the  Mine  Run  Dam  is  not 
subject  to  the  Clean  Water  Act's  permit  re 
quirements  because  it  is  a  dam  that  "does  no 
more  than  impound  navigable  waters  and 
impede  their  flow  in  the  Mokelumne  River." 
In  support  of  this  contention,  defendants  rely 
on  two  decisions  that  held  that  the  specific 
dams  at  Issue  in  those  cases  were  not  subject 
to1 'the;  discharge  permit  requirements  be 
cause1  they  did  not  "discharge  pollutants," 
Le.,  ''  'add'  pollutants  from  the  outside  world 
:  to"  navigable  water.  >See  National  Wildlife 
Federation  v. '  Consumers  Power  Co.,  862 
F.2d  580,  684  (6th  Cir.1988);  Gorsuch,  693 
F.2d  at  174-76.  These  cases  are  inapposite 

f  I'  «  *    »  >*    J'1  :.i I  •     i* -| ••        '    . 

here  .because  the  Penn  Mine  facility  does 
"discharge  pollutants"  as  that  term  is  defined 

by  the  Act  and  relevant  regulations. 

.,.;iln  bothjiCojwttwwr?.  Rower  Co.  and  Gor- 
:  <mc/i,  plaintiffs  sought,  to  compel  dam  opera 
tors  to  comply  with, .the  discharge  permit 
•requirements  of  the  Clean  Water  Act    In 

1.    The  court  \n' Gorsuch  noted  that  the  pipes  and 

spillways  of  dams  are  "point  sources"  under  the 

i..  Act,' and 'therefore,  subject  to  the  Act's  discharge 

permit  requirements:.  ,  ..... 

'    The  pipes  or  spillways  through  which  water 

'"flows  from' the  reservoir  through  the  darn  Into 

'•  '•    the  downstream  river  clearly  tall  within  [the] 

•-;:•'••' definition,  [of-a- "point  source'!,  and  the  EPA 

Gorsuch,  plaintiffs  argued  that  dam-induced 
water  quality  changes  caused  by  the  im 
poundment  and  release  of  water  were  a  "dis 
charge  of  pollutants"  within  the  meaning  of 
the  Act1  693  F.2d  at  161.  Plaintiffs  in  Con 
sumers  Poiver  Co.  argued  that  the  destruc 
tion  of  squatic  life  by  a  dam's  turbines  and 
the  release  downstream  of  the  remains  were 
a  "discharge  of  pollutants"  within  the  mean- 
ing.of  Act.  In  both  cases,  the  court  held  that 
the  dams  at  issue  did  not  "discharge  a  pollu 
tant"  because  the  dams  did  not  add  pollu 
tants  "from  the  outside  world."  Consumers 
Power  Co.,  862  F.2d  at  584;  Gorsuch,  693 
F.2d  at  174-76.  Neither  case  categorically 
exempts  all  dams  from  the  discharge  permit 
requirements  of  the  Clean  Water  Act 

.  This  case  clearly  is  distinguishable  from 
Gorsuch  and  Consumers  Pmver  Co.  because 
the  Penn  Mine  facility  does  not  pass  pollution 
from  one  body  of  navigable  water  into  anoth 
er.  Rather,  the  source  of  pollution  added  to 
the  Mokelumne  River  is  "surface  runoff  that 
is  collected  or  channelled  by"  defendants 
from  the  abandoned  mine  site.  Such  surface 
runoff  is  expressly  listed  under  the  definition 
of  "discharge  of  a  pollutant"  contained  in  the 
regulations.  See  40  C.F.R.  §  122.2  ("Dis 
charge  of  a  pollutant  means  . . .  additions  of 
pollutants  into  waters  of  the  United  States 
from:  surface  runoff  which  is  collected  or 
channelled  by  man"). 

In  this  case,  defendants  have  admitted  that 
acid  mine  drainage  from  the  abandoned  mine 
site  is  channelled  into  the  Penn  Mine  facility 
and  collects  in  the  Mine  Run  Dam  Reservoir. 
District  Answer  11 18,  24;  Board  Answer 
11 18,  22.  Defendants  also  admit  that  "water 
and  drainage  collected  in  Mine  Run  Dam 
•  Reservoir  had,  from  time  to  time,  passed 
over  the  spillway  or  through  the  valve  into 
•the  Mokelumne  River  and  Camanche  Reser 
voir."  District  Answer  1 21.  See  also  Board 
Answer  11 18,  21,  22.  These  admissions,  in 

has  required  NPDES  permits  for  the  discharge 
of  grease,  oil,  or  trash  through  the  outlet  works 
of  a  dam.  • 

Corauc/i,  693  F.2d  at  165  n.  22. 

2.  "Discharge  of  a  pollutant"  is  defined  as  "any 
addition  of  any  pollutant  to  navigable  waters 
from  any  point  source."  33  U.S.C.  §  1362(12). 


Clleu  13  FJd  303  (9lh  Clr.  1993) 

point  source  (i.e.,  the  dam's  spillway  and 
valve);  (4)  without  a  discharge  permit  See 
Gorsuch,  693  F.2d  at  165.  Because  the  stat 
ute  does'  not  require  the  Committee  to  show 
that  a  greater  level  of  pollution  enters  the 
Mokelumne  now  than  was  the  case  before  the 
Penn  Mine  facility  was  constructed,  the  dis 
trict  court  properly  granted  judgment  in  the 
Committee's  favor  on  the  issue  of  liability. 

turh,;;  conclusively  establish  that  defendants 
Evdischarge  a  pollutant"  from  the  Penn  Mine 
'.within  the  meaning  of  the  Clean  Wa- 
BJMJT-,  r-ifT making  them  subject  to  the  Act's 
«;;pe¥mli  requirements. 

gBjt  Have  defendants  raised  a  genuine  issue 
R  'of  material  fact  so  as  to  preclude  sum- 
y  judgment  for  the  Committee? 

[3]    Defendants  also  argue  that  a  material 
-  issue  of  fact  exists  as  to  whether  there  is  an 

-•  7)^'/-C*  e\L  i  r[  i  •  •• 

'"daditioh  of  pollutants,"  making  iiriproper  the 
.  mstrict  cburt'g  grant  of  summary  judgment. 
^Specifically,  defendants  rely  on  evidence  that 
ffie*acidity  of  water  flowing  into  the  Mokel- 
Imne  River  through  the  Penn  Mine  facility  is 
not  greater  now  than  it  was  before  the  dam 
was  constructed.    In  effect,  defendants  con 
tend  that  they  are  liable  under  the  Clean 
$ater  "Act  only  if  the  facility  produces  a  net 
se.ui  the  acidity  of  the  surface  runoff 
I  to  the  acidity  of  the  runoff  before 
;;  facility  was  constructed. 

•-.This  argument  misapprehends  the  focus  of 
the  Clean  Water  Act  The  Act  does  not 
impose, liability  only. where  a  point  source 
.  discharge  creates  a  net  increase  in  the  level 
of ;  pollution. ,  ,  Rather,  the  Act  categorically 
prohibits  any  discharge  of  a  pollutant  from  a 
point  source  without  a  permit  33  U.S.C. 
§§  1311(a),  1342(a);  Consumers  Power  Co., 
862  F.2d  at  682..  Thus,  the  factual  issue 
raised  by  defendants  concerning  the  histori 
cal  level  of  pollution  compared  to  the  current 
level  of  pollution  is  not  material  to  the  resolu 
tion,  of  tihe  Gohifhittee's' claim,  and  therefore 
does  not  preclude  summary  judgment  on  the 
issue  of  ^liability.  ..  , 

.  •  Defendants  ,  have  already  admitted  that 
acid  mine,  drainage  is  channelled  into  and 
collects  in  the  Penn  Mine  facility,  and  then  is 
released  over  the  Mine  Run  Dam's  spillway 
or  through  its  valve  into  the  Camanche  Res 
ervoir  and  the  Molcelurhne  River.  Conse 
quently,  they,  have  admitted  to  each  of  the 
elements  needed  to  establish  liability  under 
the  Clean  Water  Act  Defendants  have  (1) 
discharged  a  pollutant  (i.e.,  collected  and 
chiiinelea-1  surface :  runoff  containing  acid 
rai^ 'clralhage  into  'the  reservoir  and  then 
added  the  polluted  cunoff);  .(2)  into  navigable 
waters  (i.e.,  the  Mokelumne);  (3)  from  a 

C.  .Are  actions  taken  by  regulatory  authori 
ty  to  prevent  or  reduce  discharges  sub 
ject  to  the  Clean  Water  Act's  permit 

[4]  Defendants  also  argue  that  "the  State 
cannot  be  held  liable  [under  the  Clean  Water 
Act)  for  the  activities  which  it  has  performed 
pursuant  to  its  regulatory  responsibilities." 
Although  they  concede  that  no  case  has  so 
held,  they  contend  that  analogous  cases  un 
der  the  Comprehensive  Environmental  Re 
sponse,  Compensation  and  Liability  Act 
("CERCLA")  do  lend  supports  their  argu 
ment  i 

As  the  district  cqilrt  pointed  out,  in  the 
cases  cited  by  defendants,  the  absence  of 
governmental  liability  under  CERCLA  rests 
squarely  on  express  statutory  exemptions. 
See  Order  at  84-85  &  n.  32  (citing  42  U.S.C. 
§§  9607(aXD  &  (2),  and  42  U.S.C.  §  9601). 
The  Clean  Water  Act  contains  no  such  ex 
emption.  Given  the  absence  of  any  statutory 
authority  to  exempt  the  Board  or  District 
from  liability  under  the  Clean  Water  Act;  the 
district  court  did  not  err  in  finding  that 
defendants  are  liable  Under  the  Act 

D.  Does  the  Eleventh  Amendment  immun 
ize  the  Water  Board  from  liability  un 
der  the  Clean  Water  Act? 

[5J  The  Water  Board  argues  that  "the 
District  Court  could  not  consider  the  con 
struction  that  took  place  prior  to  the  filing  of 
the  lawsuit  because  of  Eleventh  Amendment 
considerations."  However,  the  Committee 
seeks  only  prospective  equitable  relief,  which 
is  not  barred  by  the  Eleventh  Amendment 
See  Pennhurst  State  School  &  Hasp.  v.  Hald- 
erman,  466  U.SJ  ,89,  104-05,  104  S.Ct  900, 
910,'  79  L.Ed.2d  67  (1984)  (citing  Ex  Parte 
Young,  209  US.  123,  166-66.  28  S.Ct  441, 
462,  62  L.Ed.  714  (1908)).  Furthermore, 



none  of  the  authorities  cited  by  defendants 
prohibit  the  district  court  from  considering 
defendants'  past  conduct  as  it  relates  to  on 
going  or  future  violations.  Thus,  defendants' 
Eleventh  Amendment  argument  is  without 


.  We  conclude  that  the  district  court  proper 
ly  granted  summary  judgment  in  favor  of  the 
Committee  on  the  issue  of  defendants'  liabili 
ty  under  the  Clean  Water  Act. 


.FERNANDEZ,  Circuit  Judge,  concurring: 

I  concur,  but  write  separately  because  my 
position  rnay  be  somewhat  more  narrowly 
based  than  the  position  of  the  majority. 

As  I  understand  it,  the  pollutants  in  ques 
tion  used  to  be  carried  into  the  Mokelumne 
River  by  Mine  Run  Creek  and  Hinkley  Run 
Creek.  The'watef  from  those  creeks,  and 
other  water,  ran  across1  the  tailings  from  the 
mines  and  became  polluted.  The  creeks  then 
carried  that  water, to  the  river.  The  project 
has  diverted  those  .creeks  so  that  they  will 
stay. clean  and  has  captured  polluted 
so  that  it  can  be  released  in  a  more  measured 
way.  In  other  words,  it  seems  that  unregu 
lated  quantities  of  pollutants  were  flowing 
into  the  river  and  causing  fish  kills  and  the 
like  long  before  EBMUD  and  the  Board  did 
anything  ,at  all.  ;  Those  entities  sought  to 
eliminate  the  disasters  caused  by  that  unreg 
ulated  flow  and  that  is  why  the  project  was 
built  The  result  has,  been  a  significant  im 
provement  in  the  river's  environment  and  a 
boon  to  aquatic  life. 

The  majority  appears  to  agree  with  appel 
lee's  position  that  the  project  is  a  point 
source  in  the  sense  that  the  Environmental 
^r'o^ection  Agency  could  not  determine  that  a 
^fPDES  permit  was  not  required.  I,  am  not 
spj.'jure.  It  seems  to  me  that,  given:  the 
history  of  this,  project,  the  EPA  could  prop 
erty  have  determined  that  this  really  is  much 
more  like  the  dams  it  dealt  with  in  National 
Wildlife  Fed'n  v.  Consumers  Power  Co.,  862 
FJ2d  580  (6th  Cir.1988),  and  National  Wild- 
life'Eed'n  u.Gorsuc^.693  F.2d  156  (D.C.Cir. 

1.    One  CouJd  even  consider  whether  primary  'jur- 
isdiction'principles  should  .bc~applied.'   See  Unit- 

1982),  than  it  is  like  the  typical  point  source 
that  truly  does  add  pollution  to  navigable 
waters.  See  33  U.S.C.  §  1362(12).  If  it  had, 
we  would  have  shown  that  determination 
great  deference.1  See  Consumers  Power, 
862  F.2d  at  584-85.  It  did  not.  In  fact,  the 
information  before  the  district  court  and  be 
fore  us  indicates  that  the  EPA  considers  the 
project  to  be  a  point  source,  which  does 
require  a  permit  containing  numerous  oner 
ous  conditions. 

Appellants  earnestly  argue  that  the  EPA's 
approach,  and  that  of  the  appellee's,  will  not 
serve  the  long-term  purpose  of  bettering  the 
aquatic  environment.  They  indicate  that  it 
takes  no  genius  or  epopt  to  see  what  the 
message  will  be.  Do  nothing!  Let  someone 
else  take  on  the  responsibility.  Let  the  wa 
ter  degrade,  let  the  fish  die,  but  protect  your 
pocketbook  from  vast  and  unnecessary  ex 
penditures.  Do  not  try  to  bring  some  order 
out  of  environmental  chaos.  In  short,  appel 
lants  suggest  that  no  Odysseus  or  Daedalus 
crafted  the  policy  which  we  are  now  asked  to 
follow.  Perhaps  they  are  correct;  I  suspect 
they  are. 

Nevertheless,  we  are  not  policymakers. 
We  must  simply  apply  the  law.  The  majority 
opinion  demonstrates  that  with  great  clarity. 

Therefore,  I  concur. 

Steven  SPAIN,  Plaintiff-Appellant, 

Trans  World  Airlines  Employees  Bene 
fits  Plan,  Defendants-Appellees. 

No.  92-55547. 

United  States  Court  of  Appeals, 
Ninth  Circuit. 

Argued  and  Submitted  Oct.  7,  1993. 
Decided  Dec.  30,  1993. 

ERISA  plan  beneficiary  brought  action 
against  plan  and  plan  administrator,  alleging 

ed  Slates  v.  Central  Dynamics  Corp.,  828  F.2d 
1356,  1362-66  (9th  Cir.1987). 


Add  Water  Code  Section  10001. 4 i 

The  East  Bay  Municipal  utility  District  way  exercise  rights 


under  its  contract  for  a  water  supply  from'  the  Auburn-Folsom  .. 
South  Unit  of  the  Federal  Central  Valley  Project  only  to  the 
extent  that  the  delivery  of  that  water  supply  will  not  cause 
flows  in  the  American  River  from  Nimbus  Dam  to  the  confluence  of 


the  American  and  Sacramento  Riverjto'be  diminished  below  the 
minimum  standards  established  by  the  State  Water  Resources 
Control  Board  in  D1400  to  protect  beneficial  uses  or  such  future 
•minimum  standards  for  the  Lower  American  River  SB  may  be 
established  by  the  State  Board  in  accordance  with  Division  2  of 
the  Water  Code. 


SENATE  BELL  No.  2458 

Introduced  by  Senator  Leroy  Greene 
(Coauthors:  Assembly  Members  Connelly  and  Isenberg) 

February  21,  1986 

An  act  to  add  Section  10001.7  to  the  Water  Code,  relating 
to  water  resources: 


SB  2458,  as  amended,  L.  Greene.    Water  facilities. 

Under  existing  law,  the  approval  of  the  State  Water 
Resources  Control  Board  is  required  for  any  change  in  the 
point  of  diversion  of  appropriated  water. 

This  bill  would  prohibit  the  construction  by  any  public  or 
private  entity  of  water  facilities  within  or  upstream  of  the 
Sacramento-San  Joaquin  Delta  in  order  to  transport  high 
quality  SacramoHfee  River,  American  River  j  or  Mokelumne 
River  water  through  the  delta  in  an  isolated  facility  where  this 
high  quality  water  would  otherwise  improve  the  quality  of 
water  downstream  of  the  intake  or  in  the  delta  unless  the 
entity  fully  mitigates  any  adverse  water  quality  effects  upon 
any  other  water  supplier  which  supplies  water  for  drinking 
purposes  to  at  least  100,000  people,  as  specified. 

Vote:  majority.  Appropriation:  no.  Fiscal  committee:  yes 
no.  State-mandated  local  program:  no. 

The  people  of  the  State  of  California  do  enact  as  follows: 

1  SECTION  1.    Section  10001.7  is  added  to  the  Water 

2  Code,  to  read: 

3  10001.7.    No  public  or  private  entity  shall  construct 

4  water  facilities  within  or  upstream  of  the  Sacramento-San 

5  Joaquin    Delta    in    order    to    transport    high    quality 

96    60 


SB  2458                              .  —  2  — 

1  Sacramento  fever?  American  River  7  or  Mokelumne  River 

2  water  through  the  delta  in  an  isolated  facility  where  this 

3  high  quality  water  would  otherwise  improve  the  quality 

4  of  water  downstream  of  the(intalc§  or  in  the  delta,  or  both, 

5  unless  the  entity  fully  mitigates  any  adverse  water  quality 

6  effects  upon  any  other  water  supplier  that  supplies  water 

7  which  is  used  for  drinking  purposes  by  at  least  100,000 

8  people  and  which  ob'tains  or  receives  water  from  the 

9  delta  or  from  a  water  source  downstream  from  the  intake 
10  of  the  isolated  facility. 

98    60 





"The  Family  Jewels  are  made  of  Paste" 

Comments  by  Robert  B.  Maddaw,  General  Counsel  of  East 
Bay  Municipal  Utility  District,  at  the  June  20,  1991  meeting 
of  the  Water  Law  Section  of  the  Bar  Association  of  San 

Soon  after  I  went  to  work  for  EBMUD  in  1972,  my 
boss  Jack  Reilley  gave  me  a  huge  black  binder 
crammed  full  of  documents.  He  said  something  like 
"here  is  your  copy  of  the  'family  jewels'."  I  soon 
learned  that  he  was  talking  about  the  District's  water 
rights,  and  that  our  most  important  task  was  to  protect 
them.  In  the  years  since  then,  that  book  has  grown  to 
two  immense  volumes,  and  literally  millions  of  dollars 
and  years  of  effort  have  been  spent  in  the  defense  of 
the  District's  rights.  Yet  it  is  absolutely  clear  that 
those  rights  are  far  less  secure  now  than  ever  before. 

A  couple  of  months  ago,  I  spoke  to  Jack  and  to  his 
predecessor,  Hal  Raines.  After  I  described  the 
changing  nature  of  EBMUD's  water  rights  and  told 
the  story  about  Jack  giving  me  my  book,  Hal  said  "I 
think  the  family  jewels  are  made  of  paste." 


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It  is  not  my  intention  to  exhaustively  explore 
California's  evolution,  to  brief  the  many  significant 

























legislative  and  regulatory  pronouncements  which  have 
occurred  in  recent  years.  Instead,  I  will  attempt  to 

characterize  a  few  trends  and  patterns  that  I  see  when 
I  try  to  decipher  the  direction  in  which  California's 










California  law  had  recognized  that  water  rights  were 

a  form  of  property  right  as  long  ago  as  the  1850s.  By 
the  1920s,  the  state  had  a  relatively  well-developed 
set  of  legal  principles  which  embraced  both  the  prior 
appropriation  doctrine  and  riparian  rights.  The  peak 
of  this  property-based  system  was  probably  the 
Herminghaus  decision  in  1926,  which  raised  serious 
questions  about  whether  traditional  water  rights  law 
would  inhibit  development  of  water  resources  to 
accommodate  the  evolution  that  was  occurring  in 

California.  In  1928,  the  Constitution  was  amended  to 
clarify  that  the  principle  of  "reasonable  use"  applied 


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Similar  comments  can  be  made  about  Fish  &  Game 
Code  Section  5937  and  5946.  The  litigation 
concerning  the  eastern  Sierra  operations  of  the  Los 
Angeles  Department  of  Water  and  Power  is 
instructive.  The  Court  of  Appeal  has  held  that  under 
the  facts  and  relevant  law,  instream  flows  have  an 
absolute  priority  to  the  water  of  the  streams  from 
which  Los  Angeles  have  an  absolute  priority  to  the 
water  for  municipal  and  industrial  use.  There  are 
other  instances  in  which  civil  litigation  has  been 
threatened  or  initiated  under  this  system  of  statutes. 
There  is  even  one  instance  in  which  a  criminal 

prosecution  was  initiated  (unsuccessfully)  against  a 
water  rights  holder  under  this  body  of  law.  A  few 





























licensee/permittee  holds  any  money  made  by  selling 
water  used  in  derogation  of  the  public  trust  for  the' 



















small  citizens  group. 

Under  another  statutory  system,  there  has  been 
assertions  that  when  the  Department  of  Fish  &  Game 

conducts  certain  types  of  streamflow  studies  and  files 
the  results  with  the  SWRCB,  the  burden  of  proof 

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Department  are  necessary  for  protection  of  fish 
resources.  Such  a  shift  would  be  a  departure  from  the 
traditional  protection  afforded  to  vested  water  rights. 


INDEX- -Robert  B.  Kaddow 

affirmative  action.  See  East  Bay 

Municipal  Utitlity  District, 

Ahmed,  Rarim,  212 
AIDS  policy,  45-47 
Albin,  Doug,  177-178 
Allen,  Russ,  37 
American  River  contract /litigation, 

59-60,  68,  77-78,  82-83,  87, 

101,  105,  146-219  passim,  232, 

245,  277 

Anderson,  Dick,  169-170 
Anton,  Walt,  108-110,  119,  121,  244, 

Association  of  California  Water 

Agencies  (ACWA) ,  61,  63-65,  68- 

69,  72,  74 

Auburn  Dam,  147,  149-151,  179,  185 
Audobon  v.  Superior  Court,  193,  201- 

202,  204,  207-208 
Ayala,  Ruben,  184,  262-263 

Bailey,  Thomas,  24 
Ballachey,  Michael,  193 
Bancroft,  Richard,  172-174,  192, 


Banks,  Harvey  0.,  148 
Bay  Conservation  and  Development 

Commission  (BCDC) ,  78,  153 
Behrens,  Russ,  70 
Best,  Best  &  Krieger,  69,  146,  167, 

190,  194,  218 
Biddle,  Dick,  96 
Bird,  Rose,  161 

Bishop,  Wally,  251,  259-260,  274 
Boeri,  Steve,  140 
Bold,  Fred,  278 
Bonner,  Al,  122-123 
Brazil,  Wayne,  95 
Briones  Dam,  126,  221 
Bromley,  Verna,  134 
Broussard,  Allen  ,  201-202,  204 
Brown  Act,  76-77 

Brown,  Edmund  G.,  Jr.,  65,  69,  175, 


Brunn,  George,  156-159,  200 
Brydon,  Charles,  133-134 
Brydon  v.  East  Bay  Municipal  Utility 

District,  133-134 
Building  Industry  Association  of 

Northern  California,  134 
Bunzel,  John,  35 
Burdick,  Chris,  93 
Burke,  Helen,  77-80,  118,  130,  169, 

216,  273-274 
Burns -Porter  Water  Bonds  Act  of 

1960,  262 

Cal-Fed  process,  265 

California  Environmental  Quality  Act 

(CEQA),  58-64,  67-70,  72 
California  Municipal  Utilities 

Association  (CMUA) ,  61 
California  State  Department  of 

Health  Services,  211 
California  State  Department  of  Fish 

and  Game,  175-176,  196-197, 

199,  213-214,  242-246 
California  State  Department  of  Water 

Resources,  118-120,  153,  175, 

187,  263;  California  Water 

Commission,  261-262 
California  State  Lands  Commission, 

176,  214-215 
California  State  Legislature, 

relationships  with,  60-61,  73- 

California  Supreme  Court,  58-60, 

158-159,  161-163,  165,  167-168, 

178,  201-202,  207 
California  Toxic  Pits  Control  Act, 


California  v.  United  States,  160-161 
Call,  Harrison,  132 
Calonne,  Ariel,  174 


Camanche  Reservoir,  82,  100,  126, 

222,  228-235,  238-239,  241-243, 
245-246,  267,  269-270,  276 

Cape,  John,  119 

Carrasco,  Jorge,  277-279 

Carrington,  A.  C.  (Bert),  84-85 

Carter,  Mack,  55-56 

Central  Valley  Project  Improvement 
Act,  107 

Central  Valley  Project,  102,  147, 
149,  183 

Chabot  Dam/Lake,  145,  223-225 

Chevron,  128-129 

Civil  Rights  Act,  35 

Civil  Rights  movement,  22-23 

Clark,  Charlie,  139 

Clark,  William,  162 

Clean  Water  Act,  247-249,  251,  255, 

Clinton,  William  Jefferson, 
administration  of,  98-99 

Cohen,  Andy,  191,  255,  273-274 

Committee  to  Save  tfokelumne  R±ver  v. 
East  Bay  MUD,  247-253 

Comprehensive  Environemntal 

Response,  Compensation  and 
Liability  Act  (CERCLA),  240 

Compton,  Buck,  41 

concurrent  jurisdiction  doctrine, 
193,  201-207 

conflict  of  interest  issues,  65-66, 

Contra  Costa  Water  District,  102- 
103,  105,  118-119,  210-211, 
226,  246;  facilities  reserve 
charge,  134;  Los  Vaqueros 
Reservoir,  226 

Craig,  Gordon,  24 

Crooks,  Bill,  245 

Dawson,  Artis,  96-99 
DeCuir,  Dennis,  172,  174,  215 
Dedrick,  Claire,  214 
Delta  Keeper,  251-252 
Dermody,  Terry,  139,  141 
Dettman,  David,  195 
Diemer,  Dennis,  260,  274,  277 
Dito,  Ed,  177-178 

Eaneman,  Bob,  108-109,  114 

East  Bay  Municipal  Utitlity  District 
(EBMUD),  Board  of  Directors, 
57,  75-89,  93-94,  97,  109-112, 
117-118,  144-146,  168-169,  171, 
176,  191,  216-219,  254-256, 
261-262,  267-269,  271-279;  bond 
issues,  126;   diversity,  79-80, 
88-99;  legal  office,  24,  53-271 
passim;  professionalism  of 
staff,  235-237;  recreational 
facilities,  222-231 

East  Bay  Regional  Park  District, 
223-224,  230-231 

East  Side  Project  Association,  149- 

Edwards,  Lucretia,  153 

Elam,  Lee,  155,  165,  174,  215 

Engstrand,  Paul,  167 

Environmental  Defense  Fund,  68,  78- 
79,  128,  132,  147,  152-161 
passim,  212,  215,  263.  See  also 
American  River  contract 

EDF,  Inc.  v.  EBMUD,  153-182,  189-201 

environmental  law,  58-64,  67-68,  74- 
75,  78,  154 

Environmental  Protection  Agency, 
247-229,  251,  253-256 

Erving,  Frank,  92-95 

Fair  Political  Practices  Commission, 

65,  67-72,  207 
Federal  Energy  Regulatory 

Commission,  124-125,  229-230, 

Federal  Power  Act  and  Commission, 

124-125,  229 
Federal  Water  Pollution  Control  Act, 


Fernandez,  Judge,  249-250,  256 
fish  habitat,  protection  of,   124- 

125,  150-151,  166,  170,  176, 

190,  195-200,  208-210,  218, 

222-223,  241-245,  249-251 
Folsom  South  Canal,  60,  101,  147- 

149,  151-152,  154-155,  173, 

179-180,  186,  199-200,  232 
Franz,  Rod,  61,  69,  73-74 


Fraser,  John,  69 

Friends  of  Mammoth  v.  Board  of 

Supervisors  of  Mono  County,  58- 

60,  68 

Ganulin,  Jim,  70 

Gardner,  John,  45 

Garner,  Eric,  190,  209 

Gilbert,  Jerome,  83,  91,  94,  96-98, 

163-164,  170-171,  185-186,  251, 

272-273,  277 
Goggin,  Walt,  122-123 
Governor's  Commission  to  Revise 

California  Water  Law,  167,  206 
Graff,  Thomas,  78-79,  165,  172,  174- 

175,  215 

Greene,  Leroy,  183-185 
Gregg,  John,  119 
Gutting,  Dick,  79 

Hackenbracht ,  Mary,  214 

Hagar,  Jeff,  270 

Hahn,  John,  138-139,  141-142 

Haight,  Lois,  33 

Hanson,  Chuck,  218 

Harder,  Orrin,  119,  235 

Harnett,  Jack,  73,  75,  83,  91,  163 

Harris,  Bob,  195,  212 

Hastings,  Chick,  33-34,  37 

Helwick,  Bob,  68,  133,  144-146,  158- 

159,  161-164,  166-167,  169, 

190,  196,  198,  216-217,  225, 

233,  277,  279 
Herrington,  John,  33 
Hill,  Jack,  169,  262-263 
Hipp,  Earl,  82 
Hitchcock,  Ted,  118 
Hodge,  Richard,  193-198,  201-205, 

210-211,  218 
Holmes,  Dallas,  69,  167 
Horton,  Larry,  22,  30 
Howard,  Frank,  57,  76,  90,  95-96, 

120,  131,  145-146,  156,  166, 


Huberty,  George,  139 
Huberty,  Joe,  139 

Imperial  Irrigation  District,  167 
Irrigation  District  Association.  See 

Association  of  California  Water 

Isenberg,  Phillip,  183-186 

Jackson,  Mike,  234 
Jacobs,  Joe,  31-33 
Jennings,  Bill,  234,  246,  250-251, 


Jensen,  Lowell,  94,  97 
Johnson,  Beverly,  99 
Johnson,  Lyndon  B.,  34-35,  45 
Jones,  Bob,  69 
Jordan,  Jerry,  69 

Karlton,  Lawrence,  247-248,  252,  256 

Keeler,  Jack,  138 

Kelley,  Carroll,  40-41 

Kelley,  Don,  195,  218 

Kennedy,  John  F. ,  34-35 

Kidman,  Art,  70 

King,  Pete,  31 

Knox,  John  T. ,  60-61,  63,  73 

Kohut,  Ron,  169,  174,  190,  194 

Kolm,  Rich,  154 

Koupal,  Ed  and  Joyce,  71-72 

Krautkraemer,  John,  174-175,  215-216 

Krueger,  DeWitt,  118 

Lafayette  Reservoir,  223 

land  use  issues,  62-64,  187,  231 

Lane,  Ed,  55-56 

Lauten,  John,  70 

Laverty,  Gordon,  222 

law  school  diversity,  25 

lead  agency  principle,  62-63 

League  of  California  Cities,  67 

Leavy,  Betsy,  93,  95-96 

Lee,  Cliff,  168 

Lesher,  Dean,  114-115 

Lindquist,  Paul,  121 

Linville,  Thomas,  245-246 


Littleworth,  Arthur,  69,  146,  166- 
168,  172,  174,  176,  189-190, 
194,  201-202,  204-205,  209, 
218,  276-277 

Lodi,  city  of,  136,  233-234,  237 

Lodl  v.  East  Bay  Municipal  Utility 
District,  178 

Los  Angeles  Department  of  Water  and 
Power,  133,  140 

Lowenstein,  Allard,  22-23 

Lowenstein,  Dan,  65,  69 

Macola,  Steve,  184 

MacRostie,  Wayne,  119 

Maddow,  Bernard  (father),  1-10,  18- 

Maddow,  Cheryl  (sister),  2-3,  5-7, 

10,  17,  20,  50 
Maddow,  David  (son),  21,  41-44,  47- 

48,  51 
Maddow,  Elaine  Gosse  (spouse),  12, 

21,  42-44,  47,  49,  51,  54,  56 
Maddow,  Gertrude  Smits  (mother) ,  1- 

2,  4-9,  13,  18-20 
Maddow,  Rachel  (daughter),  20-21, 

43-48,  87,  278 
Marin  Municipal  Water  District,  103- 

108,  120,  226 

McDonough,  Martin,  172,  215 
Mclntosh,  Stan,  92-95 
McLean,  Walter,  24 
Meral,  Gerry,  153 
Metropolitan  Water  District,  70, 

104,  119,  182,  278 
Minasian,  Jack,  70-72 
Mokelumne  River  project,  82-83,  102, 

106,  123-125,  135-136,  143, 

148,  154,  210,  213,  233-234, 

236,  238-242,  246-253,  269; 

Committee  to  Save  Mokelumne 

River,  246-253 
Montgomery,  Gayle,  Introduction, 


Moses,  Bill,  261-263 
Moskovitz,  Adolph,  168 
Municipal  Utility  District  Act,  113, 

Murray,  Angus  Norman,  138,  148 

Myers,  Jon,  235-237 

Nadel,  Nancy,  169 
Nahas,  Bob,  86-87 
National  Environmental  Policy  Act 

(NEPA),  59 
National  Pollution  Discharge 

Elimination  System  Permit ,  247- 

National  Wildlife  Federation  v. 

Gorsuch,  247-248,  256 
Nordin,  Tom,  89 
Northern  California  Power  Agency, 


Nothenberg,  Rudy,  71-72 
Novak,  Mary,  270 
Nunn,  Don,  37-40,  51 

O'Neill,  Jack,  39,  41 
Oceanic  Society,  152-153 
Okun,  Daniel,  195,  212 
Oley,  Jarlath,  70 
Oliver,  Audrey  Rice,  98-99 

Pacific  Gas  and  Electric  Company, 

Pardee  Reservoir,  102,  135-136,  221- 

224,  228-229,  238,  241,  246, 


Pardee,  George,  213 
Parker,  Audrey,  139 
Parsons,  Bill,  138 
Patterson,  Bruce,  33 
Penn  Mine,  234,  238-256 
People's  Lobby,  71 
Peripheral  Canal,  182-184,  261-265 
Pettit,  Walter,  253-254,  256 
Phillips,  Bob,  140-141,  143 
Piggott,  Patrick,  268 
Plumb,  John,  69,  73,  77 
Polisner,  Jeff,  278-279 
Political  Reform  Act  of  1974,  64-66, 

71-72,  74-75 
Proposition  13  (1978),  112,  135, 

137,  140-141,  145 
Proposition  218  (1996),  133 


public  trust  doctrine,  206-209.  See 

also  water  law 
Public  Utility  Rates  and  Policies 

Act,  125 

Qvistgaard,  Larry,.  108-109 

Raines,  Harold,  24,  67,  82,  190 

Rainey,  Richard,  133 

Reagan,  Ronald,  162,  167,  262 

Regional  Water  Quality  Control 
Board,  Central  Valley,  238, 
242-246,  249-250 

Reilley,  John  B.,  24,  55-59,  61,  66- 
68,  73-78,  80,  82,  86,  97,  117, 
135,  138,  141-144,  148,  152, 
156,  162-164,  166,  190,  214, 
216,  222,  235,  257,  266 

religious  background,  48-51 

Reynolds,  Jon  Q. ,  118 

Robertson,  Jim,  245 

Robie,  Lynn,  187 

Robie,  Ronald,  151-153,  163,  175, 

Robinson,  Howard,  85 

Rodriguez,  Matt,  214-215 

Rounsaville,  Guy,  33 

Russell,  Sarah,  214 

Ryan,  Nancie  McGann,  96,  134,  145- 
146,  166 

Sacramento  County,  as  litigants, 
155-156,  165,  172,  174,  176, 
179-183,  187,  196,  200,  213, 

Sacramento  River  Delta  Water 

Association  (SRDWA),  149-150 

Safe  Drinking  Water  Act,  195,  212 

San  Pablo  Reservoir,  105-106,  121, 
145,  221,  223 

Save  the  American  River  Association 
(SARA),  152,  165,  172 

Save  the  Bay  Association,  78,  153 

Schneider,  Anne  Jeffrey,  167-168 

Schwab,  Norm,  91 

Seipel,  Ed,  16,  26-27 

seismic  concerns,  106 
Seraydarian,  Harry,  253-255 
sewage  disposal.  See  wastewater 


Sharick,  Clark,  54-56 
Sierra  Club,  77;  Legal  Defense  Fund, 

246,  251-252 
Simmons,  Ken,  77-80,  88-90,  97-98, 


Simmons,  Paul,  215 
Singer,  Rita,  148 
Siri,  Jean,  77-78,  153 
Siri,  William,  78,  153 
Skaggs,  Sandy,  118 
Smiley,  Jay,  90-91 
Smith,  Jean  Love,  91,  94 
Somach,  Stuart,  174,  180,  215 
Spragens,  Rip,  235,  237 
Stanford  University,  17-25,  29-32, 

44-46,    48-49;    Stanford  Da±ly, 


State  Board  of  Equalization,  137 
State  Water  Project,  103-104,  264 
State  Water  Resources  Control  Board, 

101,  150-152,  158,  160,  163, 

172-179,  191-194,  197,  199-210, 

232-235,  250,  253-254,  267-272, 

Stein,  Dick,  and  the  Stein  plan, 

232,  234-235,  246 
Stern,  Bob,  65,  69 
Stretars,  Mark,  177-178 
Swidler  &  Berlin,  251-252 
Sykes,  Richard,  251 

Tarn,  Lena,  237 

tax  issues,  134-144 

Taylor,  Chet,  41-42,  51-52 

Taylor,  M.  G.  Buck,  177-178,  245 

Thayer,  Lloyd,  135-136,  138-139,  143 

Thorner,  Tom,  108 

United  State  Supreme  Court,  160-161, 


United  States  Air  Force,  service  in, 

10,  26,  29,  36-42,  50-52,  55; 

Judge  Advocate  General's  Corps, 

37,  40-42,  51,  58 
United  States  Bureau  of  Reclamation, 

59,  101,  118-120,  138,  147-152, 

155,  160-161,  174-175,  179, 

199-200,  209-210 
United  States  Department  of 

Commerce,  240,  252 
United  States  Fish  and  Wildlife 

Service,  124-125 

United  States  v.  California,  160-161 
United  States  War  Department,  239- 

University  of  California,  Berkeley, 

18-19,  74;  Boalt  Hall  School  of 

Law,  24-25 
University  of  California,  Hastings 

College  of  the  Law,  24-29,  33- 

34,  53-54 
Upper  San  Leandro  Reservoir,   221, 


Vendig,  Fred,  278 

Vietnam  War,  10,  22-23,  25,  32-36; 

draft  for,  25-26 
Vilardi,  Alice,  144 
Vogel,  Dave,  218 

Wallis,  Mike,  251,  260 

Warren,  Charlie,  214 

wastewater  treatment,  257-261,  275 

WATER  (Water  Allocation  Through 
Equitable  Rates ),  133-134 

water  conservation,  110,  112-113, 
127-128,  182,  188-189 

water  law,  67-68,  107,  143,  167-168, 
172,  176,  271,  278-279; 
physical  solutions,  178-181, 
192,  197,  200,  205;  public 
trust  doctrine,  193,  201,  204, 
207-209;  reasonable  use 
doctrine,  167.  See  also 
concurrent  jurisdiction, 
specific  cases 

water  pricing  and  rate  structure, 
107-115,  128-134,  145 

water  quality,  102-103,  105-1O6,  • 
119,  148,  160,  166,  181,  183, 
189,  195-197,  199,  209-213, 
218,  221-222,  224,  227,  239- 
241,  245,  264-265,  267-270,  276 

water  rationing,  107-116,  231-235 

water  reclamation,  152,  157-159, 
182,  185 

water  rights,  82,  102-103,  135,  137- 
140,  143,  150-152,  160,  199, 
208-209,  228,  231-237,  275 

water  supply  and  planning,  66-67, 
81-82,  87,  100-126,  148,  275- 
276.  See  also  American  River 

water  transfer,  234 

water  treatment,  220-221 

Watkins,  Professor,  35 

Way,  Ted,  277 

Weiss,  Janice,  190,  194 

Westcott,  Stuart,  30-31 

Westlands  Water  District,  70 

White,  Jeff,  267-268,  270 

Wilkinson,  Greg,  190 

Wilier,  Dave,  138,  141-142 

Williams,  John,  197-199 

Willoughby,  Thomas,  60-63 

Witchez,  Wayne,  57-58,  146,  156 

Withy,  Todd,  92,  94 

Wittschen,  Ted,  136 

World  War  II,  1-2,  4,  9-10,  24,  38, 
74,  82,  239-240,  275 

Wright,  Chuck,  118 

Wright,  Donald,  168,  206 

Younger,  Evelle,  41,  214 

Zars,  Peter,  153 


B.A.  in  European  History,  1970,  Manhattanville  College 
Purchase,  New  York 

M.A.  in  Education,  1971,  Marygrove  College 
Detroit,  Michigan 

Law  Office  Study,  1974-1978 

Member,  State  Bar  of  California  since  1979  (inactive  status) 

Elementary  School  Teacher,  Michigan  and  California,  1971-1975 
Legal  research  and  writing,  1978-1987 

Senior  Editor/  Interviewer  in  the  Regional  Oral  History  Office  in  fields  of  business,  law, 
social  issues,  government  and  politics,  water  resources,  and  University  history,  1987  to 
present.  Project  Director,  East  Bay  Municipal  Utility  District  Water  Rights  Project  and 
California  State  Archives  Oral  History  Program.